IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.331 of 2008 1. Kamleshwari Yadav @ Kamleshwar Pd.Yadav, Son of Bunni Lal Mandal, resident of village – Arraha, Tola – Piprahi, P.S. Ghailar, District – Madhepura. 2. Dhalai Mandal, Son of Bunni Mandal, resident of Piprahi, P.S. Chailar, District – Madhepura. 3. Bhogi Lal Mandal, Son of Rajeshwari Yadav, resident of Bhirkhi, P.S. & District – Madhepura. ……………….. Petitioners. Versus 1. The State Of Bihar 2. Surya Narayan Mandal, Son of Late Khikhar Mandal, resident of village – Bina, P.S. - & District – Supaul, at present resident of village – Arraha Tola Piprahi, P.S. – Ghailar, District – Madhepura. ----------- 04/ 23.06.2010 This petition is directed against the order dated 27.09.2007 passed by the Additional Sessions Judge, FTC V, Madhepura in Cr. Revision No. 15 of 2005 by which the revision petition has been allowed setting aside the order of the Judicial Magistrate dated 11.02.2005 by which the Judicial Magistrate had rejected the prayer of the complainant to call for the report of finger print expert and summoning the finger print expert as witness. 2. The prosecution case is that the mother of the respondent no. 2 filed a complaint case alleging therein that she inherited property from her father and handed it over to accuse no. 1 for looking after her properties. But this Satdev Mandal by impersonating, his sister Giraja Devi accused no. 2 in the complaint case, in place of the complainant and got a 2 sale deed executed and thus has committed the forgery. 3. The said complaint was sent for institution and lodging of a case under Section 156 (3) of the Cr.P.C and then Madhepura P.S. Case No. 74 of 1990 was registered under various Sections 419, 420, 471, 467, 468, 471 and 406 of the Indian Penal Code and during the course of investigation it was alleged that the I.O. of the instant case with permission of the court took thumb impression of the informant Rajbati Devi and accused Girija Devi in presence of learned Judicial Magistrate and sent the same to the finger print expert of crime investigation department for expert opinion but in spite of all efforts by the I.O, no report was received. Further after submission of the charge-sheet, a cognizance was taken for offence under Sections 419, 420, 406 and 467 of the Indian Penal Code charge framed. 4. During the trial a petition was filed on 21.08.2001 by the complainant that the finger print sent to finger print expert of CID Department has been called for and received in T.S. NO. 35 of 1990 filed for setting aside the sale deed, pending in the court of Special Magistrate, Madhepura, is lying there, be called for to prove the report in the criminal case. The petition remained lying as no order passed. Then 3 again a petition was filed on 20.08.2004 for calling for the report of finger print expert from the record of T.S. No. 35 of 1990 and also the finger print expert be called for his evidence in the case. 5. Further, on the said petition, after hearing the parties the petition dated 20.08.2004 and 21.08.2001 was rejected by order dated 01.09.2004. The order dated 01.09.2004 itself mentioned that the I.O filed a petition in the court of CJM for taking thumb impression of Rajwati Devi and for sending it to finger print expert which was allowed. It has also been mentioned in the order that from para 186, 187 190, 192, 199, 200, 203, 206 and 209 of the case diary, it is apparent that the thumb impression of Rajwati Devi and the accused was sent for examination to the Director, Finger Print, Crime Investigation Department, Bihar, Patna through I.O by the order of the Court dated 04.08.1993, but the report not received though cognizance taken. 6. However, thereafter the case was adjourned, the petitioner could not bring the evidence and by order dated 06.10.2004 the SDJM closed the evidence of the prosecution and fixed the case for statement of accused persons on 29.10.2004. 4 7. Thereafter a petition was filed on behalf of the informant for time for filing revision. The case was adjourned for 23.11.2004. 8. On 23.11.2004 a petition under Section 311 of the Cr.P.C was filed with a prayer that a report of the finger print report may be called for from Title Suit No. 65 of 1990 and summon the finger print expert in the interest of justice. 9. However, the said petition under Section 311 of the Cr.P.C was rejected by order dated 11.02.2005 on the ground that the prayer as made in the petition is the similar to the prayer made in the petition dated 21.08.2001 and 20.08.2004. Against the said order dated 11.02.2005 a Cr. Revision Petition Bearing No. 15 of 2005 preferred before the Sessions Judge. The Sessions Judge allowed the said criminal revision petition by setting aside the order dated 11.02.2005 with a direction to court below to call for the report of finger print expert from the court of Sub-Judge, Madhepura in Title Suit No. 35 of 1990 and also to issue summon to Mr. S. N. Mishra, the finger print expert. Being aggrieved by the order, this petition has been filed before this Hon’ble Court. 10. Learned counsel for the petitioners submits that while allowing the petition under Section 311 of the Cr.P.C 5 the learned Sessions Judge has allowed calling for the report of the finger print experts whereas Section 311 of the Cr.P.C does not permit calling for a document. It has further been contended that the court cannot be allowed to fill up the lacuna in prosecution case and hence the learned Sessions Judge, exceeded the jurisdiction. It has further been contended that earlier in the petition dated 21.08.2001 and 20.08.2004 a similar prayer was made and the same was rejected but the petitioners did not challenge that order dated 01.09.2004 and filed a petition under Section 311 of the Cr.P.C with a same prayer on 23.11.2004 and against that order revision was preferred and the revision petition was allowed but the said order dated 01.09.2004 was not challenged which had settled the issue and hence the order in revision challenging the subsequent order dated 11.02.2005 amounts to recalling and reviewing the order dated 01.09.2004 and further when case was closed allowing the prosecution to adduce evidence amount to recall the order by which evidence of the prosecution was closed and hence submitted that review is not permitted in law in criminal case. 11. Learned counsel for the opposite party, however, contended that Section 311 of the Cr.P.C permits for taking 6 evidence of a witness by recalling a witness who has been examined or even adducing evidence who has not been examined at any stage even at the stage of pronouncing judgment and hence there is no question of review of order by which case close or any order in the interest of justice to summon the material witnesses if their evidence appears to it to be essential for a just decision of the case and if there is any negligence, latches or mistake by not examining material witnesses the court has very wide amplitude to render just decision by examining such witnesses at any stage. It has further been contended that a lacuna in prosecution case may not be equated with any over sight to produce relevant material and bringing the material evidence on record for just decision of a case may not be equated with filling up lacuna in prosecution case and further it is not proper to say that to allow the application under Section 311 of the Cr.P.C will amount to review when the provision under Section 311 of the Cr.P.C itself provides with a discretion to the court to apply the Section at any stage even at the stage of pronouncing the judgment. 12. It has further been contended that Section 165 of the Evidence Act gives power to court to call for any document 7 and hence, when the document prayed to be called for is relevant for just decision of the case and it is the discretion of the Judge to apply Section 165 of the Evidence Act or Section 311 of the Cr.P.C. Question for consideration is whether these evidence are relevant and those evidence are essential for just decision of the case. 13. Hence on the respective submission of the parties the question for consideration is whether the order calling for the record and summoning the witness is permitted in law for just decision of the case and whether the impugned order is justified to have been made or the order of calling the document under Section 165 of the Evidence Act and summoning the witness has been ordered to fill up the lacuna and whether an order issuing summon under Section 311 of the Cr.P.C can be said to be reviewing the order closing the case of the prosecution. 14. Now reverting back to the fact of the case, the case has been instituted alleging therein that a sale deed has been executed by impersonating the complainant and in her place and other lady was set up to execute a sale deed and during the investigation the I.O. took the thumb impression on the sale deed and sent it to the Director of finger print expert of 8 the Crime Investigation Department though the charge sheet was submitted without getting the report of the said finger print expert from the Crime Investigation Department. However, the said report was called in a civil case T.S. No. 35 of 1990 which was filed by the complainant for setting aside the sale deed on the ground of fraud and the said report of the finger print expert along with the thumb impression which was taken during investigation having been brought in the civil suit filed by her in Title Suit No. 35 of 1990 and during the pendency of the trial in 2001 itself a petition was filed for calling the document from the said title suit to prove it in the criminal case and a petition was filed for calling those document and for evidence of the finger print expert who had examined and reported on the finger print taken of the complainant to compare it with the finger print on sale deed and the report having been submitted and the said report was prayed to be required to be called for and summon to the finger print expert be issued but the same was rejected by order dated 01.09.2004. 15. The evidence of the prosecution was closed on 06.10.2004 and thereafter a petition was filed on 23.11.2004 under Section 311 of the Cr.P.C for calling the document of 9 the said report of finger print which is lying in the records of title suit as those documents are essentially required for the just decision of the case and even the evidence of the finger print specifically required for the just decision of the case but the same was rejected and thereafter revision petition filed and the learned Additional Sessions Judge in the said revision passed the impugned order calling the record and issuing summon to it holding that the impugned order suffers from the vice of incorrectness and impropriety. It is apparent that in the criminal case the main issue in the case for offence under Sections 467, 468 and 420 when there was allegation that in place of the complainant someone has been impersonated to execute the sale deed and during the investigation the thumb impression of the complainant was taken for compare it by a finger print expert with the thumb impression on the sale deed and that was sent by the I.O to the expert of the Criminal Investigation Department, Patna for expert opinion and though the charge sheet submitted without the said report. However, the said report having been called out and lying on the record of Title Suit No. 65 of 1990 as the said title suit is for setting aside the sale deed filed by complainant and then the complainant took the certificate copy of the said 10 documents and filed it in the court with a prayer to call for the original report and even to call for the finger print expert in the criminal case as their evidences are most relevant for the just decision of the case and for point in issue. However, it is pertinent to mention that in a case of forgery alleging the sale deed executed by impersonating the complainant and in that case the evidence of the finger print expert is the most relevant for the just decision of the case and to decide the case without those evidence appears to be a mock trial and by no stretch of imagination can be said that any decision on the issue as arises in this criminal case without those evidence of report of finger print expert and oral evidence of finger print expert is not a just decision as this is the most important part of the evidence on the point raised in the criminal case and the evidence prayed to be adduced or brought on record as prayed for and even the evidence of the finger print expert is the most relevant and most essential for the just decision of the case, be it in favour or against either party. 16. The contention of the learned counsel for the petitioners that the learned court below has no jurisdiction to call for the document as Section 311 of the Cr.P.C does not enshrine the court below to call for a document and has 11 placed reliance upon decision reported in 2002 (1) PLJR 236 (Vindyawashini Prasad @ Vindhyawashini Prasad Vs. Shashi Kant Verma). However, in decision reported in 2002 (1) PLJR 236 (Vindyawashini Prasad @ Vindhyawashini Prasad Vs. Shashi Kant Verma), the question for consideration was that the Hon’ble High Court passed an order in a criminal revision and in a petition under Section 482 a prayer was made to recall the judgment or order passed in criminal revision on the ground that a decision of Hon’ble Supreme Court has not been considered causing miscarriage of justice and by the said decision the High Court held that recalling a judgment on merit amount to review and review of the judgment which is barred under Section 362 of the Cr.P.C. 17. However, in decision reported in AIR 1968 SC 178 (Jamatraj Kewalji Govani Vs. State of Maharashtra) it has been observed that under Section 540 (now 311) Cr.P.C confers wide discretion to the court to act as an exigency of the justice requires. It has further observed that so far Section 165 of the Evidence Act is concerned, in order to discover or to obtain proper proof of relevant fact, Judge may ask any question in any form, at any time, of any witness, of the parties about any fact relevant or irrelevant and may order the 12 production of any document and even observe that the provision of this section are equally wide as under this Section the production of any document can also be ordered but that will depend upon the discretion of the Judge. However it has not disputed the proposition of the law that the court can order for calling for a document. However, in 2002 (1) PLJR 236 (Vindyawashini Prasad @ Vindhyawashini Prasad Vs. Shashi Kant Verma) it has been held “be that as it may under the facts and circumstances of the case the provision of Section 165 of Evidence Act are not attracted”. Hence, the decision reported in 2002 (1) PLJR 236 (Vindyawashini Prasad @ Vindhyawashini Prasad Vs. Shashi Kant Verma) the proposition of law has not been settled that a document cannot be called under Section 165 of the Evidence Act even if justice demand rather it has been held that 165 of the Evidence Act is not attracted under the fact and circumstance of that case. Moreover, the decision reported in AIR 1968 SC page 178 (Jamatraj Kewalji Govani Vs. State of Maharashtra) has specifically mentioned in paragraph 6 and 10. “6 The section gives a power to the Court to summon a material witness or to examine a person present in court or to recall a witness already examined. It confers a wide 13 discretion on the court to act as the exigencies of justice required. Another aspect of this power and complementary to it is to be found in Section 165 of the Indian Evidence Act which provides: “Section 165: 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: * * * * * * * * * * * These two sections between them confer jurisdiction on the Judge to act in aid of justice. 10. Section 540 is intended to be wide as the repealed 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 something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner 14 brings forward something suddenly and unexpectedly. This was laid down by Tindal, C.J. in words which are oft-quoted: “ There is no doubt that the general rule is that where the Crown begins its case like a plaintiff in a civil suit, they cannot afterwards support their case by calling fresh witnesses, because they are met by certain evidence that contradicts it. They stand or fall by the evidence they have given. They must close their case before the defence begins; but if any matter arises ex improviso, which no human ingenuity can foresee, on the part of a defendant in a civil suit, or a prisoner in a criminal case, there seems to me no reason why that matter which so arose ex imprviso may not be answered by contrary evidence on the part of the Crown.” [Reg. v. Frost, (1840) 4 St. Tr. (NS) 85 at p. 86]. There is, however, the other aspect namely of the power of the Court which is to be exercised to reach a just decision. This power is exercisable at any time and the Code of Criminal Procedure clearly so states. Indeed as stated by Avory, J. in Rex v. D. Harris. (1927) 2 KB 587 at p. 594: “The cases of Reg v. Chapman, (1838) 8 C and P 558 and Reg v. Holden, (1838) 8 C and P 606 establish the proposition that the presiding judge at a criminal trial has the right to call a witness not called by either the prosecution or the defence, if in his opinion this course is necessary in the interests of justice. It is true that in none of the cases has any rule been laid down limiting the point in the proceedings at which the judge may exercise that right.” However, the learned Judge points out that injustice is possible unless some limitation is put upon the exercise of that right and he adopts for that purpose the rule laid down by Tindal, C.J. in (1840) 4 St. Tr. (NS) 85 even in those cases where a witness is called by the Judge after the case for the defence is closed, and states, “that the practice should be limited to a case where the matter arises ex improviso, which no human ingenuity can foresee, on the part of a prisoner, otherwise injustice would ensue” and cites the case of Reg v. Haynes, (1859) I F and F 666 where 15 Bramwell B. refused to allow fresh evidence to be gone into after the close of the whole case. In Dora Harris‟s case 1927-2 KB 587 five persons were tried, two for stealing and they pleaded guilty and three others for receiving who pleaded not guilty. The first two remained in the dock and the trial proceeded against the other three. They gave evidence on their own behalf and the prosecution case was not quite strong. The Recorder then asked one of the other two accused to give evidence and allowed the prisoner Dora against whom the evidence went to cross-examine him but did not ask Dora to enter the box again to contradict the new evidence. This was held by the Court of Criminal Appeal to be a wrong exercise of the power of the Court. It was an extreme example of the evidence of the power.” 18. So the Section 165 of the Evidence Act gives a power to the Court to call for any document and Section 311 of the Cr.P.C give a wide discretion to summon material witness or to examine a person present in Court or to call a witness already examined. Hence, Section 165 of the Evidence Act and 311 of the Cr.P.C confers a wide discretion and hence, the proposition of the law has been well settled in AIR 1968 SC 178 (Jamatraj Kewalji Govani Vs. State of Maharashtra) that the Court can summon a material witness and even call for material document and hence two Sections 311 of the Cr.P.C and 165 of the Evidence Act confers jurisdiction on the Judge to act in aid of justice and these two Sections between them confers jurisdiction on the Judge to 16 act in aid of justice and it is a total discretion of the Court and only rigor to see whether the power has been exercised for a just decision of the Court. However, under the facts and circumstances merely filing a certified copy could not have brought the justice as the original is required for a evidence of the finger print expert at the time of his evidence to bring in evidence which is essential for the just decision of the case and the decision reported in 2002 (1) PLJR 236 (Vindyawashini Prasad @ Vindhyawashini Prasad Vs. Shashi Kant Verma) which has not been held the principle under Section 165 of the Evidence Act read with Section 311 of the Cr.P.C that the Court even in the interest of justice cannot call for a document or issue summon. However, in para 17 of the decision reported in 2002 (1) PLJR 236 (Vindyawashini Prasad @ Vindhyawashini Prasad Vs. Shashi Kant Verma) it has been observed that “in as much as