Natasha Singh vs. CBI (State), Criminal Appeal No. 709 of 2013 (Arising out of SLP
(Crl.) No.3271 of 2013), Decided on May 8, 2013
In
the instant case the Appellant sought to examine certain witnesses after her
evidence was closed and in this respect moved an application under section 311
of Cr.PC, which application came to be dismissed by Trial Court. The Hon’ble
Delhi High Court sustained the decision of Trial Court and thus the Appellant
approached the Hon’ble Supreme Court.
The
Hon’ble Supreme Court held:
“Section 311 CrPC. empowers the court to summon a material
witness, or to examine a person present at “any stage” of “any enquiry”, or
“trial”, or “any other proceedings” under the CrPC., or to summon any person as
a witness, or to recall and re-examine any person who has already been examined
if his evidence appears to it, to be essential to the arrival of a just
decision of the case. Undoubtedly, the CrPC. has conferred a very wide
discretionary power upon the court in this respect, but such discretion
is to be exercised judiciously and not arbitrarily. The power of the
court in this context is very wide, and in exercise of the same, it may summon
any person as a witness at any stage of the trial, or other proceedings. The
court is competent to exercise such power even suo motu if no such application
has been filed by either of the parties. However, the court must satisfy
itself, that it was in fact essential to examine such a witness, or to recall
him for further examination in order to arrive at a just decision of the case.”
[Para 7]
“The scope and object of the provision is to enable the Court
to determine the truth and to render a just decision after discovering all relevant
facts and obtaining proper proof of such facts, to arrive at a just decision of
the case. Power must be exercised judiciously and not capriciously or
arbitrarily, as any improper or capricious exercise of such power may lead to
undesirable results. An application under Section 311 CrPC. must not be allowed
only to fill up a lacuna in the case of the prosecution, or of 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 opposite party. Further,
the additional evidence must not be received as a disguise for retrial, or to
change the nature of the case against either of the parties. Such a power
must be exercised, provided that the evidence that is likely to be tendered by
a witness is germane to the issue involved. An opportunity of rebuttal
however, must be given to the other party. The power conferred under
Section 311 CrPC. must therefore, be invoked by the Court only in order to
meet the ends of justice, for strong and valid reasons, and the same must
be exercised with great caution and circumspection.
“The very use of words such as ‘any Court’, ‘at any stage”, or
‘or any enquiry, trial or other proceedings’, ‘any person’ and ‘any such
person’ clearly spells out that the provisions of this section have been
expressed in the widest possible terms, and do not limit the discretion of the
Court in any way. There is thus no escape if the fresh evidence to be
obtained is essential to the just decision of the case. The determinative
factor should therefore be, whether the summoning/recalling of the said witness
is in fact, essential to the just decision of the case. [Para 14]
Fair trial is the main object of criminal procedure, and it is
the duty of the court to ensure that such fairness is not hampered or threatened
in any manner. Fair trial entails the interests of the accused, the victim and
of the society, and therefore, fair trial includes the grant of fair and
proper opportunities to the person concerned, and the same must be ensured
as this is a constitutional, as well as a human right. Thus, under no
circumstances can a person’s right to fair trial be jeopardized. Adducing
evidence in support of the defence is a valuable right. Denial of such right
would amount to the denial of a fair trial. Thus, it is essential that the
rules of procedure that have been designed to ensure justice are scrupulously
followed, and the court must be zealous in ensuring that there is no breach of
the same. [Para 15]
On
the facts of the case the Court held:
The Trial Court, while entertaining the application filed
under Section 311 CrPC., had asked the appellant to provide a brief summary of
the nature of evidence that would be provided by the defence witnesses
mentioned in the application, and in keeping with this, the appellant had
furnished an application stating that the appellant wished to examine one Shri
B.B. Sharma who was one of the panchnama witnesses, and who the prosecution had
neither listed nor examined in court. Therefore, the appellant wished to
examine him in defence. The second person was Shri S.S. Batra, Company
Secretary of the appellant, as he was the best person to provide greater
details of the company of which the appellant is the Director. The third
witness was a hand-writing expert, and it was necessary for the defence to
examine him regarding the correctness of the signatures of the appellant and
others, particularly with respect to the signatures of the appellant. [Para 17]
Undoubtedly, an application filed under Section 311 CrPC
must be allowed if fresh evidence is being produced to facilitate a just
decision, however, in the instant case, the learned Trial Court
prejudged the evidence of the witness sought to be examined by the appellant,
and thereby cause grave and material prejudice to the appellant as regards her
defence, which tantamounts to a flagrant violation of the principles of law
governing the production of such evidence in keeping with the provisions of
Section 311 CrPC. By doing so, the Trial Court reached the conclusion that
the production of such evidence by the defence was not essential to facilitate
a just decision of the case. Such an assumption is wholly misconceived, and is
not tenable in law as the accused has every right to adduce evidence in
rebuttal of the evidence brought on record by the prosecution. The court must
examine whether such additional evidence is necessary to facilitate a just and
proper decision of the case. [Para 18
The examination of the hand-writing expert may therefore be
necessary to rebut the evidence of Rabi Lal Thapa (PW.40), and a request made
for his examination ought not to have been rejected on the sole ground that the
opinion of the hand-writing expert would not be conclusive. In such a
situation, the only issue that ought to have been considered by the courts
below, is whether the evidence proposed to be adduced was relevant or not.
Identical is the position regarding the panchnama witness, and the court is
justified in weighing evidence, only and only once the same has been laid
before it and brought on record. Mr. B.B. Sharma, thus, may be in a position to
depose with respect to whether the documents alleged to have been found, or to
have been seized, were actually recovered or not, and therefore, from the point
of view of the appellant, his examination might prove to be essential and imperative
for facilitating a just decision of the case.
The High Court has simply quoted relevant paragraphs from the judgment
of the Trial Court and has approved the same without giving proper reasons,
merely observing that the additional evidence sought to be brought on record
was not essential for the purpose of arriving at a just decision.
Furthermore, the same is not a case where if the application filed
by the appellant had been allowed, the process would have taken much time. In
fact, disallowing the said application, has caused delay. No prejudice would
have been caused to the prosecution, if the defence had been permitted to
examine said three witnesses.
The
Court noted following case laws:
Mir
Mohd. Omar & Ors. v. State of West Bengal, AIR 1989 SC 1785, the Court
examined an issue wherein, after the statement of the accused under Section 313
Cr.P.C. had been recorded, the prosecution had filed an application to further
examine a witness and the High Court had allowed the same. The Court held, that
once the accused has been examined under Section 313 CrPC., in the event that
liberty is given to the prosecution to recall a witness, the same may amount to
filling up a lacuna existing in the case of the prosecution and therefore, that
such an order was uncalled for.
Mohanlal
Shamji Soni v. Union of India & Anr., AIR 1991 SC 1346, the Court examined
the scope of Section 311 CrPC., and held that it is a cardinal rule of the law
of evidence, that the best available evidence must be brought before the court
to prove a fact, or a point in issue. However, the court is under an obligation
to discharge its statutory functions, whether discretionary or obligatory, according
to law and hence ensure that justice is done. The court has a duty to determine
the truth, and to render a just decision. The same is also the object of Section
311 Cr.P.C., wherein the court may exercise its discretionary authority at any
stage of the enquiry, trial or other proceedings, to summon any person as a
witness though not yet summoned as a witness, or to recall or re-examine any
person, though not yet summoned as a witness, who are expected to be able to throw
light upon the matter in dispute, because if the judgments happen to be
rendered on an inchoate, inconclusive and speculative presentation of facts,
the ends of justice would be defeated.
Rajeswar
Prasad Misra v. The State of West Bengal & Anr., AIR 1965 SC 1887, the
Court dealt with the ample power and jurisdiction vested in the court, with
respect to taking additional evidence, and observed, that it may not be
possible for the legislature to foresee all situations and possibilities and
therefore, the court must examine the facts and circumstances of each case
before it, and if it comes to the conclusion that additional evidence is
necessary, not because it would be impossible to pronounce the judgment without
it, but because there would be a failure of justice without such evidence being
considered, and if such an action on its part is justified, then the court must
exercise such power. The Court further held as under:-
“…..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.”
Rajendra
Prasad v. Narcotic Cell through its Officer-inCharge, Delhi, AIR 1999 SC 2292,
the Court considered a similar issue and held as under:-
“Lacuna in the prosecution must be understood as the inherent
weakness or a latent wedge in the matrix of the prosecution case. The advantage
of it should normally go to the accused in the trial of the case, but an over
sight in the management of the prosecution cannot be treated as irreparable
lacuna. No party in a trial can be foreclosed from correcting, errors. If
proper evidence was not adduced or a relevant material was not brought on record
due to any inadvertence, the Court should be magnanimous in permitting such
mistakes to be rectified. After all, function of the criminal Court is administration
of criminal justice and not to count errors committed by the parties or to find
out and declare who among the parties performed better.”
P.
Sanjeeva Rao v. State of A.P., AIR 2012 SC 2242, the Court examined the scope
of the provisions of Section 311 Cr.P.C. and held as under:-
“Grant of fairest opportunity to the accused to prove his innocence
was the object of every fair trial, observed this Court in Hoffman Andreas v.
Inspector of Customs, Amritsar, (2000) 10 SCC 430. The following passage is in
this regard apposite:
`In such circumstances, if the new Counsel
thought to have the material witnesses further examined, the Court could adopt
latitude and a liberal view in the interest of justice, particularly when the
Court has unbridled powers in the matter as enshrined in Section 311 of the
Code. After all the trial is basically for the prisoners and courts should
afford the opportunity to them in the fairest manner possible.’
xxx xxx xxx xxx
We are conscious of the fact that recall of
the witnesses is being directed nearly four years after they were examined in
chief about an incident that is nearly seven years old….. we are of the opinion
that on a parity of reasoning and looking to the consequences of denial of opportunity
to cross-examine the witnesses, we would prefer to err in favour of the
appellant getting an opportunity rather than protecting the prosecution against
a possible prejudice at his cost. Fairness of the trial is a virtue that is
sacrosanct in our judicial system and no price is too heavy to protect that
virtue. A possible prejudice to prosecution is not even a price, leave alone
one that would justify denial of a fair opportunity to the accused to defend
himself.”
T.
Nagappa v. Y.R. Muralidhar, AIR 2008 SC 2010, the Court held, that while
considering such an application, the court must not imagine or assume what the
deposition of the witness would be, in the event that an application under
Section 311 Cr.PC. is allowed and appreciate in its entirety, the said
anticipated evidence. The Court held as under:
“What should be the nature of evidence is not a matter which
should be left only to the discretion of the court. It is the accused who knows how to prove his
defence. It is true that the court being the master of the proceedings must
determine as to whether the application filed by the accused in terms of
sub-section (2) of Section 243 of the Code is bona fide or not or whether
thereby he intends to bring on record a relevant material. But ordinarily an accused
should be allowed to approach the court for obtaining its assistance with
regard to summoning of witnesses, etc. If permitted to do so, steps therefor, however,
must be taken within a limited time. There cannot be any doubt whatsoever that
the accused should not be allowed to unnecessarily protract the trial or summon
witnesses whose evidence would not be at all relevant.
Other
case laws noted by Court:
Talab Haji Hussain v. Madhukar Purshottam Mondkar & Anr.,
AIR 1958 SC 376;
Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat
& Ors., AIR 2004 SC 3114;
Zahira Habibullah Sheikh & Anr. v. State of Gujarat &
Ors., AIR 2006 SC 1367;
Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.), (2007) 2 SCC
258;
Vijay Kumar v. State of U.P. & Anr., (2011) 8 SCC 136;
Sudevanand v. State through C.B.I., (2012) 3 SCC 387
Full text of judgment on: