..(1).. IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1492 OF 2008 Union of India. ..Applicant. Versus Versus Versus Simon Booyesen & 2 Ors. ..Respondents. .... Mrs.A.S.Pai, Counsel for the Applicant-Union of India. Mr.Tareeq Sayyad, Adv. for Respondent Nos.1 & 2. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 23rd June, 2008. DATED : 23rd June, 2008. DATED : 23rd June, 2008. P.C.: 1. Heard Mrs.Pai, the learned Counsel for the applicant-Union of India and Mr.Sayyad, the learned Counsel for respondent Nos.1 & 2-orig.accused Nos.1 & 2. 2. Respondent Nos.1 & 2-orig.accused Nos.1 & 2 are being prosecuted in NDPS Special Case No.83 of 2005. In the said case the evidence was led by the prosecution and 16 witnesses came to be examined. Thereafter the prosecution filed pursis stating that they have closed the evidence. The said pursis was filed on 10th December, 2007. Thereafter, statements of the accused under Section 313 Cr.P.C. came to be recorded. ..(2).. Thereafter arguments were heard and the learned Special Public Prosecutor concluded his arguments on 7th March, 2008. Thereafter on 24th March, 2008 an application came to be preferred by the prosecution for examining 19 witnesses. The said application is at Exh.115. After hearing both sides, the learned Special Judge rejected the said application. Hence the present application. 3. I have perused application at Exh.115. In the said application prayer has been made for examining 19 witnesses. The only reason stated in the application is that it is essential for just decision of the case. Nothing has been stated in the application as to how examination of these witnesses is essential for just decision of the case. 4. It needs to be emphasised that although the amplitude of the powers vested in a Court under section 311 of the Criminal Procedure Code, 1973 is very wide, the object of exercise of such powers is not to enable the prosecution to adduce evidence which would plug-in the holes in its ..(3).. case, for such an exercise of power would be defeating the very object for which it has been bestowed on the Court, namely the just decision of the case. This would be a capricious exercise of power by the Court. It is well settled that no party can take advantage of its own wrong and if the powers are exercised under this section to enable the prosecution to plug-in the holes in its case, the aforesaid principle would be given a go-by. 5. The power under section 311 of the Criminal Procedure Code, 1973 should be exercised by the Courts in rare cases, after the greatest circumspection and only when it is imperative for the just decision of the case. While exercising the power under this section, the Court should bear in mind that the larger the power the higher the circumspection required before exercising the same. 6. I am fortified in my view by the observations of the Apex Court in para 18 of its judgment, reported in AIR 1991 SC 1346 : (1991 ..(4).. Cri LJ 1521) Mohanlal Soni v. Union of India) which are to the following effect :- "The next important question is whether section 540 gives the Court carte-blanche drawing no underlying principle in the exercise of the extra ordinary power and whether the said section is unguided, uncontrolled and uncannalised. Though section 540 (Section 311 of the new Code) is 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 they should be exercised, that power is circumscribed by the principle that underlines section 540, namely evidence to be obtained should appear to the Court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or ..(5).. obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further, it is incumbent that due care should be taken by the Court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties." 7. It would also be relevant to quote the observations of Their Lordships of the Apex Court made in paras 13 and 17, in the decision reported in AIR 1978 SC 1558 Rameshar Dayal v. State of AIR 1978 SC 1558 Rameshar Dayal v. State of AIR 1978 SC 1558 Rameshar Dayal v. State of ..(6).. U.P., U.P., U.P., which are to the following effect :- "It is true that under section 540 of the Criminal Procedure Code the High Court has got very wide powers to examine any witness it likes for the just decision of the case, but this power has to be exercised sparingly and only when the ends of justice so demand. The higher the power the more careful should be its exercise............ the words, "Just decision of the case" would become meaningless and without any significance if a decision is to be arrived at without a sense of justice and fair play." 8. A perusal of the impugned order, would show that the learned Special Judge was alive to these principles when he rejected the prayer of the prosecution for adducing additional evidence. 9. When the impugned order is perused in the light of the observations of Their Lordships of the Apex Court, made in AIR 1991 SC 1346 : (1991 ..(7).. Cri LJ 1521) (supra) and the factual matrix, in which it has been passed, it cannot be faulted as suffering from any infirmity which would vitiate it. 10. As far as officer at Sr.No.1 (Smt.Y.Borgakar) is concerned, it is stated that the prosecution wishes to examine her as she was part of the raiding party and she has participated in seizure. The learned Counsel for Union of India submitted that they want to examine the officers mentioned in the application at Sr.1, 2, 5, 6 & 7 as they were witnesses to the seizure. However, it is seen that PW-1 Sanjay Kumar was also part of the raiding party and he has participated in the seizure. He has already been examined by the prosecution. Hence in my view the examination of the officers at Sr.Nos.1, 2, 5, 6 & 7 is not necessary for just decision of the case. 11. The learned Counsel for the Union of India submitted that they want to examine officers at Sr.Nos.3 & 4 (Shri.Sajeev Kumar & Rajeev Yadav) in their capacity as Joint Commissioner these persons ..(8).. had issued authority letters. The authority letter issued by PW-3 is at Exh.59 whereas authority letter issued by Mr.Rajeev Yadav is at Exh.37. The authority letter at Exh.59 is proved by PW-7 Superintendent Mr.Patkar whereas the authority letter at Exh.37 is proved by PW-1 Mr.Sanjay Kumar. Moreover, during the cross-examination of either PW-1 or PW-7 it is nowhere challenged by the accused that such authority letter are not issued by Sanjeev Kumar or Rajiv Yadav. In view of these facts when the documents are already proved and the same are not challenged, it does not appear necessary to examine Mr.Sanjay Kumar and Mr.Rajeev Yadav. 12. The learned Counsel for the Union of India submitted that they want to examine officers at Sr.Nos.11 & 12 (Suresh Ubhare & Abdul Hamid) who, according to the prosecution, were receptionists of hotel Gulistan where the accused had stayed. As far as examination of these two witnesses is concerned, the prosecution has already examined Johar Mohammed as PW-11 at Exh.83. He was serving as receptionist in hotel Gulistan. He has ..(9).. produced and proved the copies of the C-Form as well as the entries in the hotel register relating to the stay of the accused. These documents are at Exhs.84 to 93. The relevant documents are proved by PW-1 and PW-11 Mr.Johar Mohd. Thus the submission of the learned Counsel that inspite of examining PW-11 Mr.Johar Mohd. it is necessary to examine Suresh Ubhare and Abdul Hamid cannot be accepted. 13. As far as the examination of staff from South African Airways at Sr.No.17 of the list is concerned, the learned Counsel submitted that the prosecution wants to examine this witness as he was present when the accused checked in at the airport. The accused persons were to travel by South-African Airways and Air-India is handling agent for South-African Airways. PW-16 panch witness Mr.Sunil Athilat was then serving as Asst.Manager of South-African Airlines at CSI Airport. He has stated in detail about the South-African Flight No.SA-251 and that Air India was handling agent. Under such circumstances it cannot be said that it is necessary on the part of ..(10).. the prosecution to examine any other person from South-African Airways or Air-India. 14. It is true that the provisions of Section 311 Cr.P.C. can be invoked at any stage before the judgment is delivered. A witness can be examined at any stage before the judgment is delivered if it is found that his evidence is necessary for the just decision of the case. In the instant case the prosecution has already examined 16 witnesses. All relevant documents essential to be proved are either proved or admitted by the defence. It is the duty of the Court to see that all material witnesses are examined on behalf of prosecution and all the relevant documents are proved. In the instant case, the SPP has already examined 16 witnesses on behalf of prosecution. He has already taken care to prove all the relevant material documents. In view of these facts and circumstances as the material documents are already proved and the defence has not seriously challenged such documents proved on behalf of the prosecution, it do not appear just and proper to allow the ..(11).. prosecution to examine the witnesses mentioned in the application. 15. I find no flaw in the impugned order which would warrant the interference by this Court. Accordingly this application being devoid of substance is rejected. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)