IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM M-22267 of 2009 (O/M). Date of Decision : December 18, 2009. Balwinder Singh ...... Petitioner. Versus. State of Punjab and others ...... Respondent . CORAM:HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present: Mr. Puneet Sharma, Advocate, for the petitioner. Mr. A.S. Rai, A.A.G. Punjab, for respondent 1-State. Mr. P.S. Khurana, Advocate, for respondents No. 2 to 5. AUGUSTINE GEORGE MASIH, J. This petition under Section 482 Cr.P.C. has been preferred by the petitioner/complainant, praying for quashing of order dated 28.05.2009 (Annexure-P-6), passed by the learned Sessions Judge, Rupnagar, vide which application under Section 311 Cr.P.C., preferred by the petitioner/complainant for permission to place on record the statements recorded by Investigating Officer under Section 161 Cr.P.C. of Gurdev Singh injured/eye witness and Tejwinder Singh injured, which were inadvertently not filed alongwith the police report submitted under Section 173 Cr.P.C. and to lead additional evidence stand dismissed. An F.I.R. No. 96 dated 20.08.2008 under Sections 307/326/34 I.P.C., Police Station Chamkaur Sahib, came to be registered against the CRM M-22267 of 2009 (O/M). accused/respondents on a statement made by the petitioner/complainant Balwinder Singh @ Sangat Singh son of Bishan Singh, which was recorded in Civil Hospital, Chamkaur Sahib, wherein intimation was received on 20.08.2008 regarding admission of injured Balwinder Singh in the hospital. On 19.08.2008, injured Balwinder Singh (petitioner/complainant) was declared unfit to make any statement by the Medical Officer. The respondents/accused with an intention to cause death to Balwinder Singh (petitioner/complainant) caused injures on his person, while he was going for a walk on Sirhind Canal in the area of Chamkaur Sahib at about 08:00 P.M. on 19.08.2008, for the reason that the accused/respondents had tried to outrage the modesty of the daughter of his friend, namely, Sadhu Singh, resident of Mohalla Raiwara, Chamkaur Sahib, as the complainant/petitioner helped him. Gurdev Singh son of Hari Singh, a passerby tried to rescue injured Balwinder Singh on hearing the alarm raised by the petitioner/complainant Balwinder Singh. The accused/respondents also caused injuries on the person of Gurdev Singh, and, thereafter, accused/respondents threatened the petitioner/complainant Balwinder Singh and eye witness Gurdev Singh that he had been taught a lesson and now they are going to teach a lesson to his other associate Teja @ Tejwinder Singh as they both had objected to accused/respondents, while misbehaving with Gurjinder daughter of Sadhu Singh, who is a friend of petitioner/complainant Balwinder Singh. Thereafter, the assailants went towards the house of Teja @ Tejwinder Singh, who was also way laid in the street at a short distance of less than 100 yds and grievous injuries were caused to Teja @ Tejwinder Singh on the vital parts of the body with a sharp edged weapon. Teja @ Tejwinder Singh was -2- CRM M-22267 of 2009 (O/M). treated in Post Graduate Institute of Medical Education, and Research, Chandigarh, since he had suffered fractures on the vital organs. The Investigating Officer recorded the statements and collected the M.L.Rs./Medical Case Summaries of the injured Balwinder Singh (petitioner/complainant) and Gurdev Singh (eye witness) in the first case diary itself. On completion of investigation of the case, the Station House Officer, Police Station Chamkaur Sahib, submitted police report under Section 173 Cr.P.C. against the accused/respondents under Sections 307/326/34 I.P.C. before the learned Area Magistrate on 18.11.2008. One of the accused, namely, Paramjot Singh @ Popan (respondent No. 2 herein) could not be arrested and he was proceeded against under Sections 82/83 Cr.P.C. In the police report under Section 173 Cr.P.C., submitted against the accused/respondents, M.L.Rs. of all the injured alongwith other relevant documents and copy of statements recorded under Section 161 Cr.P.C. were attached in support of report under Section 173 Cr.P.C. Inadvertently, copy of the statements recorded under Section 161 Cr.P.C. of Gurdev Singh and Teja @ Tejwinder Singh, were not attached with the challan report, though, names of these two injured/eye witnesses were mentioned in the list of witnesses at Serial. No. 2 and 3 attached with the police report. Accused/respondent No. 2 Paramjot Singh @ Popan surrendered before the learned Trial Court on 18.11.2009, and he was arrested in the case. Supplementary challan was presented against him and thereafter, the learned Area Magistrate committed the case to the Court of Session, Rupnagar. The charges were framed on 17.03.2009 against the accused/respondents under Sections 307/34 I.P.C., but charges under -3- CRM M-22267 of 2009 (O/M). Sections 323/326 I.P.C. were not framed against the accused/respondents, despite grievous injuries on the vital parts of Balwinder Singh (petitioner/complainant) and on the person of Gurdev Singh, were found. When the case was fixed for prosecution evidence after framing of charge, the prosecution and the petitioner/complainant realised, at that stage, that the statements of eye witness/injured Gurdev Singh and Teja @ Tejwinder Singh, have inadvertently not been attached with the police report submitted under Section 173 Cr.P.C. by the police. Accordingly, an application for additional evidence under Section 311 Cr.P.C., was submitted by the petitioner/complainant, wherein it was pleaded that the F.I.R. was registered on the statement of Balwinder Singh (petitioner/complainant). In the said statement, it was specifically mentioned that the injuries upon Gurdev Singh and Tejwinder Singh were inflicted by the accused/respondents. At the time of presentation of the challan, the names of Gurdev Singh and Tejwinder Singh, were cited in the list of witnesses being eye witnesses/injured and their medico legal reports were also placed on record. However, inadvertently the statements under Section 161 Cr.P.C. during investigation of eye witnesses/injured, namely, Gurdev Singh and Tejwinder Singh, could not be placed with the challan and this fact came to the knowledge of prosecution at the time of examination of the witnesses. The said statements by mistake, are lying in the police file and the prosecution intends to place the said statements on record file. No prejudice would be caused to the accused/respondents by placing the said statements on record, but in case the application is not allowed, the prosecution will suffer irreparable loss. -4- CRM M-22267 of 2009 (O/M). The said application was opposed by the accused/respondents and the ground taken therein was that the said application was not maintainable and the same has been filed only to fill up the lacuna left by the prosecution. There is no question of inadvertent mistake, as at various stages, the prosecution had taken caution to rectify its mistake, which it fails to do and now at this belated stage, application under Section 311 Cr.P.C. could not be allowed. On consideration of the respective submissions made by the parties and their counsel, the learned Sessions Judge, Rupnagar, proceeded to reject the application preferred by the petitioner/complainant under Section 311 Cr.P.C., vide order dated 28.05.2009 (Annexure-P-6), which has led to the filing of the present petition by the petitioner/complainant challenging the same. Counsel for the petitioner/complainant contends that an inadvertent mistake, which had occurred during the presentation of report under Section 173 Cr.P.C., wherein through oversight, statements of two eye-witnesses/injured, namely, Gurdev Singh son of Hari Singh and Teja @ Tejwinder Singh son of Rattan Singh, could not be attached with the report, although, both of them were cited as eye witnesses/injured and their medico legal reports were attached with the report. He on this basis submits that, as a matter of fact, both the witnesses were injured in the incident. He has referred to the medico legal reports of Gurdev Singh and Teja @ Tejwinder Singh (Annexure-P-9 and Annexure-P-10 (colly) respectively) to show that grievous injuries were received by both of them at the hands of the accused/respondents. Their names as injured and eye- witnesses to the incident find mention in the F.I.R. itself, which was recorded on the statement of the petitioner/complainant. He contends that -5- CRM M-22267 of 2009 (O/M). the learned Sessions Judge, Rupnagar, had proceeded to reject the application, merely on technicalities and had totally overlooked the intent and purpose for which Section 311 Cr.P.C. has been incorporated. There is no lacuna in the case of the prosecution , which is being sought to be filled up, as a matter of fact, the mistake is a bonafide mistake, which needs to be condoned and rectified, so that justice should not be a casualty and truth should prevail. In support of his contentions, he relies upon the provisions of Section 311 Cr.P.C. as also the judgment of Hon'ble the Supreme Court in the case of Rajendra Prasad Versus The Narcotic Cell through its Officer- Incharge, Delhi, 1999 (3) R.C.R. (Criminal) 440, wherein Hon'ble the Supreme Court has held that the lacuna and error are two distinct things and oversight in the management of prosecution, cannot be tried as a reasonable lacuna and no party in a trial can be fore-closed from correcting errors and inadvertent errors should be permitted to be rectified by the Court, while exercising its power under Section 311 Cr.P.C. He on this basis prays for allowing the present petition and setting aside the order dated 28.05.2009 (Annexure-P-6), passed by the learned Sessions Judge, Rupnagar. Reply on behalf of respondent No. 1-State has been filed. In the said reply, which is in the form of an affidavit, wherein factum of recording statements of Gurdev Singh son of Hari Singh and Teja @ Tejwinder SIngh son of Rattan Singh by the Investigating Officer on 20.08.2008. is admitted. It has further been admitted that inadvertently copies of statements recorded by the Investigating Officer under Section 161 Cr.P.C. , were not attached with the report submitted under -6- CRM M-22267 of 2009 (O/M). Section 173 Cr.P.C. It is also admitted that the said statements were available on the police file. The prosecution has fully supported the application, moved under Section 311 Cr.P.C., by the complainant/petitioner. The statements of Gurdev Singh son of Hari Singh and Teja @ Tejwinder Singh son of Rattan Singh (Annexure-P7 and Annexure-P-8) as placed on record in the present petition, as also the copies of the medico legal reports of Gurdev Singh and Tejwinder Singh as Annexure-P-9 and Annexure-P-10 (colly), are admitted. No reply on behalf of accused/respondents No. 2 to 5 has been filed in the Court. On 09.10.2009, counsel for respondents No. 2 to 5 had made a statement in the Court that he does not want to file reply to the petition and accordingly, the case was adjourned for arguments. Counsel for respondents No. 2 to 5 submits that the application under Section 311 Cr.P.C., preferred by the petitioner/complainant is not maintainable as it is only the Public Prosecutor, who could prefer an application under Section 311 Cr.P.C. He refers to Section 301 (1)(2) Cr.P.C. and submits that, although, permission may be granted to a counsel to assist the Public Prosecutor, but the Public Prosecutor still holds the reins of the case and right to move an application under Section 311 Cr.P.C. in a case is only available to the Public Prosecutor and none else. In support of his contention, he relies upon the judgment of Kerala High Court in the case of Somasundaram Versus Chandra Bose, 2001 (2) R.C.R. (Criminal), 830. He contends that by way of application under Section 311 Cr.P.C., the prosecution is trying to fill up the lacuna, which would not be permissible in law. Grave prejudice would be caused to the accused/respondent in case at this stage the present -7- CRM M-22267 of 2009 (O/M). application is allowed. He relies upon the judgment of this Court in the case of Madanjit Singh Versus Baljit Singh, 1997 (2) R.C.R. (Criminal), 808, in support of his contention that the lacunae of the prosecution in a criminal case cannot be allowed to be filled up under the grab of an application under Section 311 Cr.P.C. In any case, there is no mistake much less inadvertent, while presentation of challan against the accused/respondents and the contention of prosecution cannot be accepted. As per practice and procedure, before presentation of challan in the Court, the same is duly checked by the prosecuting agency and thereafter, it is committed to the Court of Session by the learned Area Magistrate. The prosecution, at that stage, had an opportunity to go through the challan papers. Thereafter, before the Court of Session, when the charge was framed, again an opportunity was available with the prosecution to examine the names of witnesses and their statements recorded under Section 161 Cr.P.C., but the prosecution failed to detect the same and nor did make any effort to take any steps to place the statements of Gurdev Singh and Tejwinder Singh allegedly recorded under Section 161 Cr.P.C. by the Investigating Officer. That apart, the statements having not been attached with the report under Section 173 Cr.P.C. and having not been supplied to the accused/respondents, their rights have been adversely prejudiced and, therefore, the present application had been rightly rejected by the learned Sessions Judge, Rupnagar,, vide order dated 28.05.2009 (Annexure-P-6). His further submission is that, vide order dated 28.05.2009 (Annexure-P- 6), the learned Sessions Judge, Rupnagar, had, apart from application under Section 311 Cr.P.C., rejected the application preferred by the petitioner/complainant under Section 216 Cr.P.C. for altering and adding -8- CRM M-22267 of 2009 (O/M). charge. This application has not been challenged by the petitioner/complainant and the same has attained finality and for this reason, the present petition deserves to be dismissed. I have heard counsel for the parties and with their able assistance have gone through the records of the case. The facts are not in dispute. The assertions as made in the present petition on the factual aspect by the petitioner/complainant has been admitted by respondent-State on the basis of records. The accused/respondents No. 2 to 5 have preferred not to file reply to the present petition, and, thus, have not contradicted and disputed the factual aspects as asserted by the petitioner. What, therefore, comes out of the factual gamut is that statements of Gurdev Singh son of Hari Singh and Teja @ Tejwinder Singh son of Rattan Singh under Section 161 Cr.P.C. were indeed recorded by the Investigating Officer and are available on the police file. The statements so recorded have been placed on record as Annexure-P-7 and Annexure-P-8 respectively. The medico legal reports of Gurdev Singh and Teja @ Tejwinder Singh are on records as Annexure-P-9 and Annexure-P-10 respectively (colly). It is not in dispute that names of Gurdev Singh son of Hari Singh and Teja @ Tejwinder Singh son of Rattan Singh find mention in the list of eye witnesses at Serial No. 2 and 3. The medico legal reports of Gurdev Singh and Teja @ Tejwinder Singh (Annexure-P-9 and Annexure-P-10 respectively (colly)) support the factum of they were injured as the date of admission of Gurdev Singh at Civil Hosital, Chamkaur Sahib, is 19.08.2008 and that of Teja @ Tejwinder Singh is also on 19.08.2008 at P.G.I. Chandigarh. The statements of Gurdev Singh was recorded by the Investigating Officer at Civil Hospital, -9- CRM M-22267 of 2009 (O/M). Chamkaur Sahib, on 20.08.2008 and that of Teja @ Tejwinder Singh in P.G.I. at Chandigarh, on 20.08.2008 and on the same date, M.L.R./Medical Case Summary of the injured were collected by the Investigating Officer, as per reply filed by respondent No. 1-State. The application under Section 311 Cr.P.C. has been preferred by the petitioner/complainant at the very initiation of the prosecution evidence, when it was realised by the petitioner/complainant and the prosecution that inadvertently statements of Gurdev Singh and Teja @ Tejwinder Singh recorded under Section 161 Cr.P.C. by the Investigating Officer have not been attached with the report under Section 173 Cr.P.C. A perusal of Section 311 Cr.P.C. would clearly indicate that it is a discretionary power of the Court to exercise the same at its discretion and enables it at any stage of inquiry, trial or proceeding under the Code to summon anyone as a witness or examine any person present in the Court or recall or re-examine any person whose evidence has already been recorded. It further provides and rather mandates the criminal court to summon, examine, recall or re-examine any of the persons as mentioned, if his evidence appears to the Criminal Court to be essential for the just decision of the case. This Section gives all powers to the Court without any fetters being put on it with regard to the stage and the manner in which it should be exercised. It is not only the prerogative and the power of the Criminal Court, but also enjoins duty on the Court to seek and arrive at the truth and do the justice. At this stage Section 311 Cr.P.C. needs to be reproduced, which reads as follow :- -10- CRM M-22267 of 2009 (O/M). “ 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 or 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.” . This Court, while considering the ambit and scope of Section 311 Cr.P.C. in the case of Jagdish and another Versus State of Haryana, Criminal Revision No. 2547 of 2009, decided on 25.09.2009, has held as follows :- “ The section when read as reproduced above, clearly shows that this provision gives ample powers to the Court to recall, summon, or re-examine any person in evidence, if it appears to be essential to the just decision of the case. The powers of the Court are wide enough to exercise its discretion depending upon the facts and circumstances of each case and it is to the satisfaction of the Court and to see that cause of justice should not suffer. The primary aim and object of this Section is to do justice between the parties. If the Court comes to a conclusion that the production of such evidence, which has been sought to be produced taking recourse to Section 311 Cr.P.C., would enable the Court to come to a correct finding, it would be just and reasonable and the Court would be fully justified in permitting the evidence to be produced under this Section. This section does not distinguish and rather allows production of evidence whether documentary or oral, which the Court feels is necessary for the just decision of the case and no fetters and impediments can be put in exercise of these powers, which has been conferred by the Legislature on the Trial Court. The Court -11- CRM M-22267 of 2009 (O/M). cannot dilute the statutory powers conferred upon the Trial Court, when the Legislature did not intend to do so. Justice should not be the sufferer. The purpose and intent of the trial is to find out the truth and the truth alone should prevail and in its quest to find out and to reach the truth, the Trial Court has been saddled with powers to make all efforts to reach a correct conclusion, which is the truth. No doubt, in the said process, the interest of the parties has to be taken care of, but that does not mean that justice should be the casualty. The rights have been conferred under the statute both on the prosecution as well as the accused and when the statute confers certain powers upon the Court, which is primarily in the nature of doing justice and for that it is the satisfaction of the Court as to the essentiality of the evidence, sought to be produced by the parties for the just decision of the case, the same is depending upon the facts of each case.” Thereafter, this Court in the case of Dr. Gurpreet Kaur Versus Appropriate Authority-cum-Senior Medical Officer, Incharge Sub-Division Hospital, Tehsil Phillaur (Jalandhar), being CRM M-17027 of 2009, decided on 04.12.2009, has held as follows :- “ A perusal of the above provision shows that it is a discretion provided to the Court, where any inquiry, trial, or other proceedings under the Code is pending, the Court has been given wide powers to recall or re-examine any person already examined, if his evidence appears to the Court to be essential for the just decision of the case. The satisfaction is, therefore, of the Court, which has to decide the matter pending before it. The touchstone for exercise of powers under Section 311 Cr.P.C. is the satisfaction of the Court that the evidence of any person, which comes to its notice, is essential for the just decision of the case. It can at that stage summon any person as witness, examine any person in -12- CRM M-22267 of 2009 (O/M). attendance, though not summoned as a witness or recall or re- examine any person already examined. This power, under Section 311 Cr.P.C., can be exercised by the Court at any stage of any inquiry, trial, or other proceedings under the Code of Criminal Procedure. The intention of the Legislature is to empower and enable the Court to come to a correct finding and for that reason, the Court would be fully justified in permitting production of evidence whether documentary or oral, where the Court feels that the same is necessary for the just decision of the case and no fetters can be put in exercise of these powers of the Court. The cause of justice is paramount and no impediment has, therefore, been intentionally put on the Court by the Legislature to exercise the powers under Section 311 Cr.P.C.” Hon'ble the Supreme Court in the case of Godrej Pacific Tech. Limited Versus Computer Joint India Limited, 2008 (3) R.C.R. (Criminal), 897, while considering the provisions of Section 311 Cr.P.C. has held as follows :- “8 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 proceedings, eqnuiries 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 -13- CRM M-22267 of 2009 (O/M). 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, he discretion conferred is to be exercised judiciously, as the wide the power the greater is the necessity for application of judicial mind. 9. 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 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 ake note of the fact that the best available evidence has not been given, and can draw an adverse