THE HIGH COURT OF ORISSA : CUTTACK CRLMC NO.769 of 2010 In the matter of an application under Section 482 of the Code of Criminal Procedure, 1973. -------------- State of Orissa ………… Petitioner -Versus- Durjo @ Duryodhana Sanamajhi and others ………… Opp. Parties For Petitioner : Mr. V.Narasingh (Additional Government Advocate) For Opp. Parties : Mr. P.C.Chhinchani P R E S E N T : THE HON’BLE MR. JUSTICE INDRAJIT MAHANTY. Date of Hearing: 13.12.2010 Date of Judgment: 17.12.2010 ________________________________________________________________________ I.Mahanty, J. The State of Orissa has filed the present application under Section 482 Cr.P.C. seeking to challenge the order dated 20.2.2010 passed by the learned Adhoc Addl. Sessions Judge, FTC-II, Phulbani in Sessions Trial No.18 of 2009 (ST 3/09-FTC-II) with a prayer to allow P.Ws.17 and 18 to be recalled for further examination in course of the trial. 2. The brief facts leading to the present case is that on 23.8.2008, an F.I.R. was filed by one Brahmachari Madhab Chaitanya regarding the murder of Swami Laxmanananda Saraswati. Investigation was taken up by the police and Final Form was filed against the opposite parties. The police placed reliance on the evidence recorded under Section 161 Cr.P.C. of a number of witnesses including Mahasing Kanhar (P.W.17) and Birendra Kanhar (P.W.18), both are residents of the district of Kandhamal and were cited to be examined as prosecution witnesses, since the investigation revealed that they had narrated crucial evidence leading to the homicidal death of Swami Laxmanananda as well as regarding the post-occurrence events pointing out to the involvement of the accused persons in the commission of the crime. 3. The investigation of the case had been handed over to the Superintendent of Police, CID-CB, Orissa, Cuttack vide P.S. Case No.37 of 2008 was registered. On 13.11.2008, the statements of Mahasingh Kanhar (P.W.17) and Birendra Kanhar (P.W.18) were recorded under Section 161 Cr.P.C. by the Investigating Officer. On 30.1.2009, charge- sheet was filed against the accused-opposite parties, while keeping the investigation open under Section 173(8) Cr.P.C. On 17.3.2009, the 2 Investigating Officer in a related case recorded the statement of one Prabhat Panigrahi under Section 161 Cr.P.C. and on 18/19.3.2009, the said Prabhat Panigrahi was killed. On 23.4.2009, the Investigating Officer recorded the statement of one Gopinath Lima under Section 161 Cr.P.C. in a related case and on 4.8.2009 the said Gopinath Lima was killed. On 5.9.2009 both Mahasing Kanhar and Birendra Kanhar were examined as P.Ws.17 and 18 respectively and resiled from their statements recorded under Section 161 Cr.P.C. 4. The prosecution alleged that on 10.1.2010 Mahasingh Kanhar (P.W.17) addressed a petition to the Superintendent of Police, Kandhamal and a similar petition was also addressed to the Superintendent of Police, Kandhamal by Birendra Kanhar (P.W.18) on 12.1.2010. The extract of the petitions (translated from Oriya) are noted hereinbelow: “To The Superintendent of Police, Kandhamal Sir, I Sri Mahasingh Kanhar, S/o. Tasban Kanhar, Vill.- Kelani Sahi, P.S.-Kotagarh beg to inform you that I am one of the witnesses of Swami Laxmanananda Saraswati’s Murder case. During investigation of this case I have truthfully narrated the facts seen by me and known to me before the Investigating Officer. Before my deposition in the Fast Track Court, the supporters of the accused persons of this case threatened me not to depose the facts narrated by me to the I.O. and kept watch on me near the Trial Court. I was mortally afraid just before my deposition, so I could not narrate the 3 facts known to me in my deposition. I denied to the public prosecutor in this respect. Since then I constantly regret for concealing the truth. Now also there is imminent danger to me and my family so I secretly came to you and inform this matter. So I request you if proper protection is provided to me by police and opportunity be given by the court I shall depose the truth. Yours faithfully, Read over to me an I found Sd/- to correctly recorded and signed. Mahasingh Kanhar 10.1.2010” “To The Superintendent of Police, Kandhamal Sir, I Sri Birendra Kanhar, S/o. Jandura, vill.-Haripur, P.S.- Timudibandh beg to inform you that I have given my deposition as a witness in the murder case of Swami Laxmananda in the Fast Track Court, Before my deposition some people came to me and threatened not to depose the facts which I have narrated before police during investigation. On the day of my deposition in the trying court I found those persons keeping watch on me just out side court premises. As I found my life is at stake, I could not disclose the fact before the trying court. I also know that two witnesses of these cases have been murdered. So I request you to kindly provide police protection to me. I also request you if police protection will again be given to me in the court, I would disclose the fact within my knowledge. I request you to take proper action in this regard. The contents of this petition were read over to me after and I found it to be correctly recorded, I put my signature on it. Yours faithfully, Sd/- Birendra Kanhar 12.1.2010” 5. On 2.2.2010 a petition was filed by the prosecution, before the court of learned Adhoc Additional Sessions Judge, Fast Track Court 4 No.2, Phulbani, under Section 311 Cr.P.C. (Annexure-2) with a prayer to recall P.Ws.17 and 18 in view of their petitions submitted by the witnesses, namely, Mahasingh Kanhar (P.W.17) and Birendra Kanhar (P.W.18). This petition was heard by the learned Adhoc Additional Sessions Judge and came to be rejected by him vide order dated 20.2.2010 (Annexure-3) which is the subject matter of challenge herein. 6. Mr.V.Narsingh, learned Additional Government Advocate on behalf of the State submitted that the court below had failed to appreciate the scope and ambit of the second part of Section 311 Cr.P.C. which has been held by the Hon’ble Supreme Court to consist of two parts: First Part : Giving a “discretion” to the Court to examine the witnesses at any stage. Second Part : The “mandatory” provision which enjoins upon the court a duty to examine a witness if the evidence sought to be adduced appears essential to the just decision of the case. Learned counsel for the State submitted that the case of the prosecution in its application under Section 311 Cr.P.C. would come under the second part of the Section 311 Cr.P.C. and submitted that the court below, lost sight of the second part of Section 311 Cr.P.C. He 5 further submitted that both the P.Ws. 17 and 18 as contended in their petition before the Superintendent of Police, were under serious threat to their lives for which reason, they were constrained to resile from their statements recorded under Section 161 Cr.P.C. out of fear, on account of what had transpired prior to their evidence being led in court. It is asserted by the State that two other witnesses whose statements had been recorded under Section 161 Cr.P.C. by the Investigating Officer, in connected cases, namely, Pravat Panigrahi and Gopinath Lima were killed soon after the recording of their 161 statements. Further as would be revealed from their petitions, the persons who threatened the said witnesses had kept a watch on the said witnesses and were near the trial court even on the date of their evidence being recorded and being mortally afraid could not narrate the actual truth known to them as had been recorded in their deposition under Section 161 Cr.P.C. Learned counsel for the State submitted that P.Ws. 17 and 18 were vital witnesses for the prosecution and on receipt of the petitions from the said witnesses, the Superintendent of Police, Kandhamal, immediately directed the I.I.C., Kotagarh P.S. and the O.I.C., Timudibandh P.S. to take follow-up action and to remain alert and to intensify the police patrolling near the house of the said witnesses by providing security to them and the said directions have also been 6 implemented for the safety of the said witnesses from the date of receipt of the said petitions. Based on the said petitions, the matter was reported to the Public Prosecutor, Kandhamal on whose advise, the State filed a petition under Section 311 Cr.P.C. for recall and re-examination of P.Ws. 17 and 18, namely, Mahasingh Kanhar and Birendra Kanhar respectively. 7. Learned counsel for the State placed reliance on the following judgments of the Hon’ble Supreme Court in support of his contentions: (i) Mohanlal Shamji Soni v. Union of India and another, 1991 Supp(1) Supreme Court Cases 271. (ii) Rajendra Prasad v. Narcotic Cell, (1999) 6 Supreme Court Cases 110. (iii) Iddar and others v. Aabida and another, AIR 2007 Supreme Court 3029. (iv) Himanshu Singh Sabharwal v. State of Madhya Pradesh and others, (2008) 3 Supreme Court Cases 602. The Hon’ble Supreme Court in the case of Mohanlal Shamji Soni (supra) has dealt with the scope and ambit of Section 311 Cr.P.C. para materia with Section 540 of the old Code of 1898 and came to uphold the judgment of the Hon’ble Gujrat High Court allowing recall and re-examination of certain witnesses while rejecting the contention of 7 the accused persons therein that, permitting the prosecution to recall the witness who had already been examined was violative of the principles underlined Section 540 (now Section 311 Cr.P.C.). The Hon’ble Supreme Court reiterated the views expressed in the earlier case of Rameshwar Dayal v. State of U.P., 26 Crl.L.J. 1035 and concluded that, whenever any additional evidence is recorded or fresh evidence is admitted against the accused, then it was absolutely necessary, in the interest of justice that, the accused should be afforded a clear and reasonable opportunity to rebut the evidence of that part of record against him. In the case of Rajendra Prasad (supra), Hon’ble Supreme Court in a Division Bench presided over by Hon’ble Justice K.T.Thomas in Paragraph-12 has noted the following: “12. We cannot therefore accept the contention of the appellant as a legal proposition that the court cannot exercise power of resummoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during final arguments. The power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just decision. The steps which the trial court permitted in this case for resummoning certain witnesses cannot therefore be spurned down or frowned at.” (emphasis supplied) In the case of Iddar and others (supra), the Hon’ble Supreme Court presided over by a Bench consisting of Hon’ble Dr. Justice Arijit Pasayat, reiterated the principle laid down by the Hon’ble 8 Supreme Court in the earlier decision and came to conclude in Paragraph-12 which is as follows: “12. 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. Sections 60, 64 and 91 of the Indian Evidence Act, 1872 (in short, ‘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 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.” (emphasis supplied) In the case of Himanshu Singh Sabharwal (supra), while dealing with the scope of Section 311 Cr.P.C. the Hon’ble Supreme Court in its judgment rendered by the Division Bench presided over by Hon’ble Justice Dr. Arijit Pasayat, came to hold that, during examination of several witnesses who were stated to be eyewitnesses, such witnesses resiled from the statements made during investigation and even three police witnesses also resiled from their earlier statements. They are 9 Dhara Singh (P.W.32, Sukhnandan (P.W.33) and Dillip Tripathi (P.W.34). In the said case which has been filed with a prayer seeking to transfer the case from Sessions Court in M.P. to some other place, in the larger interest of justice and transparency, the learned counsel for the State submitted that, they had no objection about the transfer of the said case to any other state. Learned counsel appearing for the respondent- accused in order to show their bona fides, also stated that, even the police officials, P.Ws.32, 33 and 34 may be recalled for cross- examination even without any application in terms of Section 311 of the Code of Criminal Procedure, 1973 being filed. In this case, Hon’ble Supreme Court came to hold as follows: “The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society are not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice-often referred to as the duty to vindicate and uphold the majesty of the law.” “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 by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.” 10 “If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.” “A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny.” “ ‘Witnesses’, as Bentham said: are the eyes and ears of justice, Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clout and patronage and innumerable other corrupt practices ingeniously adopted to smoother and stifle truth and realities coming out to surface rendering truth and justice to become ultimate casualties.” (emphasis supplied) In the said judgment while allowing the petition seeking transfer of trial from Madhya Pradesh to Nagpur in the State of Moharashtra, the Hon’ble Supreme Court further directed that it is open for the Public Prosecutor to seek recall of any witness already examined 11 in terms of Section 311 of the Code and, this direction was in addition to its earlier direction to recall and re-examination of P.Ws.32, 33 and 34. 8. Mr. P.C.Chhinchani, learned counsel for the accused- opposite parties, on the other hand, vehemently argued that allowing the prayer of the prosecution would seriously prejudice the interest of the accused persons since P.Ws.17 and 18 had already been examined by the prosecution and thereafter, also cross-examined by the prosecution after declaring them hostile. Considering such a request on the part of the prosecution at the fag end of the trial, when only the Investigating Officer remains to be examined, would in effect permit a de novo trial which is impermissible in law. In this respect, reliance was placed by the learned counsel for the accused-opposite parties on the following judgments of the Hon’ble Supreme Court in support of his contentions: (i) Hanuman Ram v. The State of Rajasthan and others, (2008) 41 OCR (SC) – 792 (ii) Nisar Khan @ Guddu & others v. State of Uttaranchal, (2006) 33 OCR (SC) – 499 (iii) Mohanlal Shamji Soni v. Union of India and another, 1991 Supp (1) Supreme Court Cases 271 12 9. In the light of the submissions advanced by the learned counsel for the parties as noted hereinabove, it is now become necessary to deal with the findings reached by the trial court in the impugned order dated 20.2.2010 under Annexure-3 to the present application, which is quoted hereinbelow: “In the instant case admittedly both the witnesses i.e. P.Ws. 17 and 18 without any fear or apprehension in their mind appeared in the court on being summoned and entered the witness box. They did not reveal any such apprehension in their mind during their evidence in court. From the tenor of evidence it also appears that they remained farm not to support the prosecution case, which the fact revealed when the effort taken by the prosecution by putting the witnesses to cross-examination under section 154 of the Evidence Act could not fetch any result and went futile. Had there any threat been extended to them and the witnesses really had the intention to help the court in reaching a just and proper conclusion in deciding the case they could have appraised such fact to the S.P., Kandhamal soon after they received summon from the court and could have abstained from deposing in the court until protection was sought for by them. Having attended the court without revealing their apprehension in any manner it is really difficult to accept the concern shown by the witnesses as transformed by the prosecution through their petition. It is also hard to believe that the witnesses had any obstacle in giving proper evidence before the court while they were in a protected zone being inside the premises of the Court. In the given facts and circumstances, having regard to the principle enunciated in the decision referred to by the defence in the matter of Hanuman Ram v. the State of Rajasthan and others reported in (2008) 41 OCR (SC) 792 I am dragged to the conclusion that it would be a travesty of justice if this court recall the witnesses who having appeared in the Court on their own examined once and declared hostile by the prosecution and discharged without any iota of apprehension in their mind. With the above considered view I am not inclined to allow the prayer of the prosecution and both the petitions recalling witnesses accordingly stands rejected.” 13 Insofar as the scope and ambit of Section 311 Cr.P.C. is concerned, the same has been well settled by the Hon’ble Supreme Court in a catena of judgments. While dealing with the case of Mohanlal Shamji Soni (supra), Hon’ble Mr. Justice S.Ratnavel Pandian dealt with earlier decisions of the Hon’ble Supreme Court, on the scope of Section 540 of the old Code of 1898 corresponding to Section 311 of the new Code of 1973 and found that Section 311 is almost a verbatim reproduction of Section 540 of the old Code except for the insertion of the words ‘to be’ before the word ‘essential’ occurring in the old section. Accordingly, it was held that the said section was manifestly in two parts. Whereas the word used in the first part is ‘may’ the word used in the second part is ‘shall’. As a consequence thereto, the first part which can be stated to be ‘permissive’ gives purely discretionary authority to the Criminal Court and enables it “at any stage of enquiry, trial or other proceedings” under the Code to act in one of the three ways, namely: (1) to summon any person as a witness, or (2) to examine any person in attendance, though not summoned as a witness, or (3) to recall and re-examine any person already examined. The second part which is ‘mandatory’ imposes an obligation on the court: (1) to summon and examine, or 14 (2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. Thereafter, in the said judgment, Hon’ble Supreme Court came to conclude at Paragraph-27 thereof which is as follows: “27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case.” (emphasis supplied) 10. Now it becomes important to consider the judgments relied upon by the learned counsel for the opposite parties. In the case of Hanuman Ram (supra), the Hon’ble Supreme Court presided over by Hon’ble Justice Arijit Pasayat came to conclude in Paragraph-11 which is as follows: “11. The factual scenario in Mishri Lal’s case (supra) has great similarity with the facts of the present case. The High Court’s view for accepting the prayer in terms of Section 311 of the Code does not have any legal foundation. In the facts of the case, the High Court ought not to have accepted the prayer made by the accused persons in terms of Section 311 of the Code. Above being the position, we set aside the impugned order of the High Court.” (emphasis supplied) Hon’ble Supreme Court in the aforesaid case reached its conclusion by placing reliance on an earlier judgment of the Hon’ble 15 Supreme Court in the case of Mishralal and others v. State of M.P. and others, (2005) 10 SCC 701. In the said case, Hon’ble Mr. Justice K.G.Balakrishnan