IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.708 of 2009 Bhagwati Singh, son of Late Ram Sakal Singh, resident of Village-Kalyanpur, P.S.-Kargahar, District-Rohtas. ……Petitioner. Versus 1. The State of Bihar. 2. Chandradeo Yadav, son of Late Deoki Yadav, resident Of Village-Kharagpurwa,P.S. Kargahar, District-Rohtas. ….Opposite Parties. For the Petitioner :- Mr. Sumant Singh,Advocate. For the State :- Dr. Mayanand Jha,A.P.P. ------------------- 4. 20. 05. 09. Heard. The petitioner is aggrieved by the order dated 22. 01. 2009, passed by the Additional Sessions Judge, Fast Track Court No. 3, Rohtas at Sasaram in Sessions Trial No. 116 of 1994,under Sections 302, 147,, 148, 149, 302 I.P.C. and 27 of the Arms Act, whereby he allowed the application under Section 311 of Cr. P.C. filed on behalf of prosecution to examine further witnesses. The facts of the case are as follows:- One Chandradeo Yadav lodged an F.I.R. on 29. 07. 1991 giving rise to Kargahar P.S. Case No. 94 of 1991, registered under Sections 147, 148, 149 and 302 of the Indian Penal Code and 27 of the Arms Act. In view of the issue involved, one need not go into details of the prosecution case. The case was instituted in the year 1991 and charge sheet was filed soon thereafter. The case was committed in 1994. However, charges were framed on 21. 2. 2003 under Sections 147, 148, 149 and 302 of the Indian Penal Code. No witness turned up for examination 2 till 22. 11. 2004. One Sheo Pujan Singh was examined as P.W.1 on that date. Despite sufficient opportunities the prosecution could not examine any witness for nearly four years. The trial court after exhausting all the processes closed the prosecution case on 9. 9. 08. However, later on the day the learned Additional Public Prosecutor gave Hazri of one Doma Mahto. As prosecution case was closed, aforesaid Doma Mahto was not examined as a witness. Hence, the court proceeded to record the statements of the accused persons in terms of Section 313 Cr.P.C. on the next date, e.g.,15. 09.2008. On 15. 09. 2008, the learned Additional Public Prosecutor also filed a petition for re-examination of witnesses under Section 311 Cr.P.C., which was opposed by the accused. The A.P.P. contended in the court below that Doma Mahto and Uma Sah are ready to give evidence and in the interest of justice they be examined. In support of his contention, he relied upon the decision reported in 1981 B.L.J.R. 362 and 2006 Eastern Criminal Cases (S.C.) 176. Learned counsel for the accused argued before the court below that even after getting sufficient opportunities, the prosecution did not examine any witness other than P.W.1. It was submitted before the trial court that the case was an old one of 1991 and charges were framed long back in early 2003. The learned trial court vide order dated 21. 1. 09, allowed application of prosecution as one witness had filed 3 hazri. On the very day prosecution case was closed and again on 15.9.08 two witnesses were in attendance to give evidence. The petitioner assails the impugned order submitting that such indulgence would amount to giving a long rope to the prosecution to fill up its lacuna. He submits that, though, charges were framed in February,2003, only one witness was examined on 22. 11. 04. In spite of notices, issuance of non-bailable warrant of arrest, no witness turned up and the prosecution case was closed on 9.9.08.Section 311Cr.P.C. cannot come in aid of a side which is utterly negligent and failure to produce witness for such a long period. He submits that long and delayed prosecution is in teeth of principles of speedy trial as enshrined in Article 21 of Constitution of India. In support of his contention learned counsel relies upon the decision of Keshav Choudhary Vrs. State of Bihar reported in 2000 Criminal Law Journal 3705. In the aforesaid case, the trial court had allowed an application under Section 311 Cr.P.C. filed by the prosecution in a case U/S 379 I.P.C. The accused persons challenged the order allowing the application U/S 311 Cr.P.C. This Court allowed the petition of the accused and quashed the impugned order of trial court allowing the application of the prosecution filed under Section 311 Cr.P.C. This Court observed that Section 311 Cr.P.C. does not give rope for filling up lacuna in the prosecution case. 4 Section 311 Cr. P. C. can not be used for harassing the accused However, the Court observed that power under Section 311 Cr.P.C. can be exercised for examining appropriate witnesses for securing ends of justice and for arriving at just decision. On the basis of the aforesaid decision, learned counsel submits that sufficient time of more than five and half years were granted to the prosecution to produce witnesses and as such no further laxity would be tenable in law. He submits that in any view of the matter, learned Magistrate does not have power to review or recall its own order. In support of his contention, learned counsel relied upon the case of Bindeshwari Prasad Singh Vrs. Kali Singh, reported in A.I.R. 1977 S.C. 2432. Learned counsel for the State submits that Section 311 Cr.P.C. can be allowed for arriving at a fair and just decision in a case. In support of his contention learned counsel relied upon decisions reported in case of Zahira Habibullah Sheikh (5) and another Vrs. State of Gujarat and others reported in (2006) 3 S.C.374; U.T. of Dadra & Nagar Haveli and another Vrs. Fatehsinh Mohansinh Chauhan reported in (2006) 7 S.C. 529 and case of Godrej Pacific Tech. Limited Vrs. Computer Joint India Limited reported in (2008) 11 S.C. Cases 108. He submits that it is true that neither the Magistrate nor the Sessions court has power to review or 5 recall, but the said ratio will have no applicability in this case, as the trial court has passed the impugned order pursuant to power conferred under Section 311 Cr.P.C. The case of Bindeshwari Pd. Singh(supra) relied upon by the petitioner has been passed in different context and facts. In the above case,the complaint was dismissed under Section 203 Cr.P.C. and the learned Magistrate recalled the order dismissing the complaint on a subsequent petition filed by the complainant. In the aforesaid circumstances, the Apex Court held that a Magistrate does not have any power to recall or review of its order in absence of any provision. He submits that the facts in the instant case are different. The case was reopened and witnesses have been permitted to be examined in view of specific provision made under Section 311 Cr.P.C. The preliminary issue, thus, crops up is whether order passed under Section 311 Cr.P.C. reopening the prosecution case, which was closed earlier amount to review or recall of the previous order. The Criminal Procedure Code has not conferred power on Magistrate or Sessions court to review or recall its order, save and except,for correcting typographical error. They do not have inherent power as provided to High Court U/S 482 Cr. P.C. or to subordinates courts in civil matter U/S 151 of Civil Procedure Code. The Magistrate or Sessions court either in enquiry or trial can not recall or review its order without there being specific provision to that effect. 6 Section 311 Cr.P.C. confers power to a court to summon material witness or to recall or re-examine any witness present, if his evidence appears to it to be essential to just decision of the case. If in the aforesaid circumstances, a court exercises its power to reopen the prosecution case and examine a witness, it would not amount to reviewing or recalling its order. However, if the petition of Public Prosecutor is rejected under Section 311 Cr.P.C, then on same set of evidence if the court allows subsequent petition filed under Section 311 Cr.P.C., it would amount to reviewing or recalling its order, which is not permissible, which is not the facts in the instant case. Coming back to the main issue, it appears that the instant case was registered under Sections 147, 148, 149 and 302 I.P.C. Charges were framed under the aforesaid Sections in the year 2003. The prosecution failed to produce any witness, save and except, one Sheo Pujan Singh who was examined on 22. 11. 04. It is true that no witness turned up thereafter, though sufficient opportunities were given to the prosecution after all the processes were exhausted. The trial court as such closed the prosecution evidence on 9.9.08. It appears that later on the same day, the Public Prosecutor filed Hazri of a witness Doma Mahto. As the prosecution case was closed earlier in the day, the trial court did not examine him and proceeded to record statement of 7 the accused under Section 313 Cr.P.C. on the next date (15. 09.08). On the same day,prosecution filed a petition under Section 311 Cr.P.C. It is not in dispute that Section 311 Cr.P.C. does not provide a long rope to the prosecution to examine witness at its leisure, nor is it an instrument for filling up lacuna. A long delay in examining witness in itself could be a valid ground for dismissing such application. Nevertheless, the Court has to weigh whether such belated application would serve the interest of justice or whether it would cause unnecessary harassment and prejudice to the other side. The Apex Court in case of Zahira Habibullah Sheikh (Supra) in paragraphs 27 and 28 while explaining objects of Section 311 Cr.P.C. observed as follows; Para 27-“The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all 8 proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is “at any stage of any inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.” Para-28. As indicated above, the section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation:. It is, that the court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court. Section 60, 64 and 91 of the Evidence Act, 1872 (in short “the Evidence Act”) are based on this rule. 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 side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations 9 made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be “filling of loopholes”. That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge.” Section 311 Cr.P.C. also fell for consideration in case U.T. Dadra & Nagar Haveli and another Vrs. Fatehsinh Mohansinh Chauhan reported in (2006) S.C.C. 529 In the aforesaid case, the application under Section 311 Cr.P.C. was filed by accused for examining the plea of their alibi. The trial court allowed the application which was reversed by High Court. The Apex Court restored the order of trial court setting aside the order of High Court. The Apex Court held that power under Section 311 Cr.P.C. can be exercised for finding out the truth or obtaining of proof of facts which may lead to a just and correct decision. When such exercise of power is made, the plea that power was exercised to fill the lacuna cannot be accepted. In the case of Godrej Pacific Tech. Limited Vrs. Computer Joint India Limited (supra) the issue of re- examination of a witness under Section 311 Cr.P.C. also fell 10 for consideration. The trial court as well as Hon‟ble High Court had rejected the prayer of the prosecution to re-examine the witnesses already examined. The matter came up to the Apex Court. The Apex Court in para 6 of the aforesaid case held as follows ; “The section is manifestly in two parts. Whereas the word used in the first part is „may‟, the second part uses „shall‟. In consequence, the first part gives purely discretionary authority to a criminal court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon any one as a witness, or (b) to examine any person present in the court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary 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 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 11 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.” The Case of Satyajit Banerjee Vrs. State of West Bengal reported in 2005 CRI. L.J. 648, relied upon by opposite party would be of not much help. The Apex Court in case of Satyajit Banerjee (supra) observed that decision rendered in Best Bakery Case was based on extraordinary circumstances and cannot be complied or closed against established criminal jurisprudence. The Apex Court in the abovementioned case observed that direction for retrial should not be made in a case where acquittal of accused is for want of adequate reliable evidence. It would be useful to quote para 25 of the judgment which reads as follows: Para25-“The law laid down in the „Best Bakery Case‟ in the aforesaid extraordinary circumstances, cannot be applied to all cases against the established principles of criminal jurisprudence. Direction for retrial should not be made in all or every case where acquittal of accused is for want of adequate or reliable evidence. In Best Bakery case, the first trial was found to be a farce and is described as „mock 12 trial‟. Therefore, the direction for retrial was in fact, for a real trial. Such extraordinary situation alone can justify the directions as made by this Court in the Best Bakery Case (supra).” The principles emanating from judgment of Hon‟ble Apex Court, one can safely conclude that Section 311 Cr.P.C. can be resorted in an appropriate case for arriving at just and fair decision, and for meeting the ends of justice. In the case of Keshav Chaudhary Vrs. State of Bihar reported in 2000 Criminal Law Journal 3705, it was observed that inspite of several dates, no witness turned up on behalf of the prosecution for adducing further evidence. The major Section was one under Section 379 I.P.C. The statement of accused persons were recorded under Section 313 Cr.P.C. Thereafter, a petition was filed on behalf of the prosecution for re-examination of the witness examined. This Court in the aforesaid circumstances held that Section 311 Cr.P.C. cannot be resorted for filling up the lacuna. This Court at the same time held that Section 311 Cr.P.C. can be invoked if the same is required for the ends of justice. This Court would not have allowed the prosecution such a long rope under Section 311 Cr. P. C. If witness had not appeared and filed Haziri on the same day the prosecution case was closed in early hours. Furthermore, the case is under Section 302 IPC and rejection of application 13 under Section 311 Cr.P.C. would have meant rejection and dismissal of prosecution case itself, as only one witness had been examined till then. An application U/S 311 Cr. P.C. ought not to be allowed, if the same causes prejudice and hardship to the other side, on account of callousness and indifference of the other side in brining their witnesses. This Court in such circumstances, find that the learned trial court has rightly allowed the application under Section 311 Cr.P.C. Since the case is of the year 1991 and charges were framed in the year 2003, the prosecution would examine all its witnesses by 25th June, 2009. No further time would be allowed to the prosecution, if it fails to examine all its witnesses within that time. The trial court after the aforesaid date will proceed to hear the argument. Let a copy of this order be communicated to the trial court by Fax at State cost. In view of the aforesaid observations, this revision application is disposed of. Let a copy of this order be handed over to Dr. Mayanand Jha, learned counsel appearing on behalf of the State for due communication also. m.p. (Samarendra Pratap Singh, J.)