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SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, A.S. BOPANNA, JJ.
Varsha Garg – Appellant
Versus
The State of Madhya Pradesh and Others – Respondents
Criminal Appeal No. 1021 of 2022, M.A. No. 1144 of 2022, SLP (Crl) No. 2239 of 2022
Decided On : 08-08-2022
(A) Criminal Procedure Code, 1973 – Sections 311, 301 and 482 – Summoning of witness – Case registered for offence punishable under Section 302 read with Section 34 of IPC – Application for summoning of witness and for production of decoding register was submitted by State – As such, bar contained in Section 301 does not stand in the way – Power under Section 311 can be exercised at any stage of any inquiry, trial or other proceeding under Cr.P.C. – Essentiality of evidence of person who is to be examined coupled with need for just decision of case constitute touchstone which must guide decision of Court – Power is couched in widest possible terms and calls for no limitation, either with regard to stage at which it can be exercised or manner of its exercise – It is only circumscribed by principle that evidence to be obtained should appear to court essential to a just decision of case by getting at truth by all lawful means – Power of court is not constrained by closure of evidence – Court is not a hapless bystander in derailment of justice – Court has a vital role to discharge in ensuring that cause of discovering truth as an aid in realization of justice is manifest – Application filed by prosecution for production of decoding registers and for summoning of witnesses of cellular companies for that purpose allowed. (Paras 27, 28, 29, 30, 32, 42 and 44)
(B) Criminal Procedure Code, 1973 – Sections 91 and 311 – Production of document and summoning of witness – Summons to produce a document or other thing under Section 91 can be issued where Court finds that production of document or thing is necessary or desirable for the purpose of any investigation, trial or other proceeding under Cr.P.C. – Effort of prosecution to produce decoding register which is a crucial and vital piece of evidence ought not to have been obstructed – In terms of provisions of Section 311, summoning of witness for the purpose of producing decoding register was essential for just decision of case – Right of accused to a fair trial is constitutionally protected under Article 21 – It is duty of criminal court to allow prosecution to correct an error in interest of justice. (Paras 35, 37 and 40)
Facts of the case:
A Single Judge of the Indore Bench of the High Court of Madhya Pradesh rejected, by a judgment dated 8th April 2022, a petition instituted by the appellant under Section 482 of the Code of Criminal Procedure 1973. The petition addressed a challenge to the correctness of an order dated 13th November 2021 of the Second Additional Sessions Judge, Dr. Ambedkar Nagar, District Indore rejecting an application under Section 311 Cr.P.C. seeking to summon nodal officers of certain cellular entities along with the decoding register to trace mobile location of accused persons.
Findings of Court:
Decision of High Court which is impugned in the appeal is unsustainable. impugned judgment and order of the High Court dated 8th April 2022 in Misc. Criminal Case No. 57152 of 2021 as well as the order of Second Additional Session Judge, Dr. Ambedkar Nagar, District Indore dated November 2021 in Sessions Trial 227 of 2016 dismissing application filed by prosecution set aside.
Result : Appeal allowed.
Key Points: - The Court holds that Section 311 Cr.P.C. powers are broad and can be exercised at any stage to summon or recall witnesses if essential to the just decision of the case. (!) (!) (!) - Section 91 Cr.P.C. empowers courts to issue summons to produce documents or things when necessary or desirable for investigation, trial, or other proceedings; decoding registers are treated as relevant evidence to establish location vs. cell tower linkage. (!) (!) - The decoding registers and related call data records were deemed crucial and not to be obstructed; the Court allowed the prosecution’s applications for production of decoding registers and summoning cellular-company witnesses. (!) (!) - The decision reiterates that the right to a fair trial under Article 21 can be protected by allowing the prosecution to correct errors or fill lacunae in the evidence. (!) (!) - The Court emphasizes that the scope of Section 311 is to discover truth and aid justice, not to retrial or prejudice the accused; it cites Zahira Habibullah Sheikh and Mohanlal Shamji Soni for this principle. (!) (!) (!) - The High Court’s earlier dismissal on grounds that decoding registers were not part of case diary, or that evidence was closed, was set aside; the trial court is directed to conclude Sessions Trial No. 227 of 2016 by 31 October 2022. (!) (!) - Interim bail extension for Mangilal Thakur granted due to medical condition up to 31 October 2022. (!)
JUDGMENT :
DHANANJAYA Y. CHANDRACHUD, J.
1. A Single Judge of the Indore Bench of the High Court of Madhya Pradesh rejected, by a judgment dated 8 April 2022, a petition instituted by the appellant under Section 482 of the Code of Criminal Procedure 19731 [Cr.P.C.] registered as Misc. Criminal Case No. 57152 of 2021.
2. The petition addressed a challenge to the correctness of an order dated 13 November 2021 of the Second Additional Sessions Judge, Dr. Ambedkar Nagar, District Indore rejecting an application under Section 311 Cr.P.C. seeking to summon the nodal officers of certain cellular entities along with the decoding register to trace the mobile location of accused Vikas, Mangilal and Suresh.
3. The appellant is the spouse of an advocate who was brutally murdered outside his office at about 2330 hrs on 18 November 2015. Following the homicide, a First Information Report bearing Criminal Complaint No. 734 of 2015 was registered with Police Station2 [“P.S.”] Mhow, District Indore on 19 November 2015 for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code 18603 [“IPC”]. The investigation was initiated. The post mortem report indicated that the homicide was caused due to a firearm injury. The second, third, fourth, fifth and sixth respondents (i.e. Vikas, Sawan, Mangilal, Suresh and Raju) were arrested during the course of the investigation.
4. A charge-sheet was submitted after investigation on 15 February 2016. A supplementary charge-sheet was submitted on 20 November 2016. The case has been committed to the Court of the Second Additional Sessions Judge, Dr. Ambedkar Nagar, District Indore and was registered as Sessions Trial 227 of 2016.
5. Among the enclosures to the supplementary charge-sheet were certificates dated 11 January 2016 of the nodal officers of certain cellular companies, namely:
(i) a certificate dated 11 January 2016 of Airtel.
(ii) a certificate dated 18 January 2016 of Reliance.
(iii) a certificate dated 30 March 2016 of Idea.
(iv) a certificate dated 6 June 2016 of Vodafone.
Upon the commencement of the recording of evidence at the trial, the nodal officers of Idea (PW-33), Airtel (PW-41), Reliance (PW-43) and Vodafone (PW-48) were examined on 17 November 2017, 7 May 2018, 17 July 2018 and 31 October 2018. The Station House Officer4 [“SHO”] P.S. Mhow between February 2016 and April 2017, was examined by the prosecution as PW-47 on 31 October 2018. PW-47 had filed the supplementary charge-sheet and had prepared a compact disc5 [“CD”] with call details of the co-accused. He also admitted that he had not filed a certificate as required under Section 65B of the Indian Evidence Act 18726 [“IEA”] in relation to the CD.
6. The statements of accused - Suresh (the fifth respondent) and Mangilal (the fourth respondent) - under Section 313 Cr.P.C. were recorded on 25 January 2020 and 12 February 2020 respectively. During the course of the trial, the CD had been produced but since it was found to be ‘corrupted’ an application was made to the trial court to requisition the copy of the CD which was available at the police station. The application was allowed on 15 November 2019. On the subsequent date, PW-47 marked his appearance. On the next date of hearing, when PW-47 was required to produce the CD which was kept at the police station, he failed to do so. In those circumstances, an application (‘first application’) was preferred to requisition the said CD but this application was rejected by the trial court on the ground that the evidence of PW-47 had been recorded and a last opportunity had already been given to him to produce the CD. A Single Judge of the High Court on 2 March 2020 allowed the petition instituted by the appellant to challenge the order of the trial court, noting that the CD was a vital piece of evidence and had been provided to all the accused along with the charge-sheet. Resultantly, the trial court was directed to take necessary steps for requisitioning the CD through the
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