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2018 Supreme(Kar) 803
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
P.S. Dinesh Kumar, J.
Irfan Pasha, S/o Late Abdul Majeed and Ors. – Petitioners
Versus
National Investigating Agency Represented by SPP High Court of Karnataka Bangalore – Respondent
Writ Petitions No.47150-153 of 2018 (GM-RES)
Decided On : 08-01-2019
For the Petitioner:Shri. S. Balakrishnan, Advocate
For the Respondent:Shri. P. Prasanna Kumar, Advocate
Headnote:
Constitution of India,1950 – Criminal Procedure Code,1973 - Section 311 - Indian Penal Code,1860 – Sections 302, 201, r/w 34 - Articles 226 and 227 - Unlawful Activities(Prevention) Act, 1967 - Sections 15,16,17,18 and 20 - Arms Act - Sections 3 and 27 - Indian Evidence Act, 1872 - Section 127 - (i) Whether the petitions are maintainable? - (ii) Whether the impugned order requires any interference? - Re. point No.(i) Whether petitions are maintainable? –Held, Court cannot exercise power of re-summoning any witness if once that power was exercised nor can power be whittled down merely on ground that prosecution discovered laches only when defence highlighted them during final arguments - Power of court is plenary to summon or even recall any witness at any stage of case if court considers it necessary for a just decision - Steps which the trial court permitted in this case for re-summoning certain witnesses cannot therefore be spurned down or frowned at motor cycle used by accused - It is settled that lacuna in prosecution is an inherent weakness or latent wedge in matrix of prosecution case advantage of same should normally go to accused but an oversight in management of prosecution cannot be treated as filling up a lacuna case of NIA that oral request was made on permission to show material objects to witnesses as same were not readily available leads to an inference that prosecution has not waived its right to show material object to witnesses circumstance under which material objects were not shown to the witnesses has been explained by prosecution – Order accordingly
Petitioners, in these writ petitions, have challenged order dated 12.10.2018 in Spl.C.No.181/2017 passed by XLIX Additional City Civil & Sessions Judge (Special Court for trial of NIA Cases), Bengaluru, allowing an application filed by the National Investigating Agency(NIA) under Section 311 of Cr.P.C.
2. Heard Shri S.Balan, learned advocate for the petitioners and Shri P.Prasanna Kumar, learned advocate for the respondent-NIA.
3. Petitioners are accused No.1 to 4 facing trial for offences punishable under Sections 302, 201, r/w 34 IPC, Sections 3 and 27 of Arms Act and Sections 15,16,17,18 and 20 of Unlawful Activities(Prevention) Act, 1967.
4. Shri S.Balan submitted that examination-in-chief of three prosecution witnesses namely PWs.1, 2 and 3 was completed on 07.06.2018. P.W.1 was cross-examined on 08.06.2018, 28.06.2018, 31.07.2018, 01.08.2018, 14.08.2018 and the cross-examination was completed on 22.09.2018. On the very same day, prosecution filed the instant application to recall P.Ws. 1 to 3 for the purpose of identification of weapon and the motor cycle used by the accused for the offence.
5. Assailing the impugned order, Shri Balan urged following contentions:
that Section 127 of the Indian Evidence Act, 1872 (‘Act’ for short) provides for examination, cross-examination and re-examination of a witness. The prosecution had an option to reexamine P.Ws. 1 to 3 and get the weapon and the motor cycle allegedly used by the accused duly identified by the said witnesses in re-examination. However, re-examination has been taken as ‘nil’. This implies that prosecution has waived its right to examine the said witnesses any further;
that Section 311 of Cr.P.C. is in two parts. The first part is discretionary in nature and second part is mandatory. It permits recall and re-examination of a witness but does not permit further examination;
that the instant application under Section 311 Cr.P.C. is filed only in order to fill up the lacunae in the prosecution case;
that though the learned trial Judge has recorded NIA’s contention in paragraph No.12 of the impugned order with regard to its request for permission to show the material object to the witnesses, the same is not borne out on record inasmuch as the order sheet does not disclose the request, if any, made by the NIA;
that P.Ws.1 to 3 are not panchanama witnesses. The NIA has enough opportunity to get the material objects marked through the panch witnesses; and
that by allowing the application under Section 311 Cr.P.C., the learned Trial Judge has reviewed his order dated 22.09.2018, on which date he has recorded re-examination by the NIA as ‘nil’.
6. Thus in substance, Shri Balan contended that NIA has waived its right to further examine the witnesses and the instant application is filed to fill up the lacunae in the prosecution case. He placed reliance on the following two authorities:
(i) (2017) 8 SCC 570 [Sonu alias Amar Vs. State of Haryana] to support his contention that NIA has waived its right to reexamine the witnesses; and
(ii) AIR 1991 SC 1346 [Mohanlal Shamji Soni Vs. Union of India (UOI) and Ors.] to support his contention that power under Section 311 Cr.P.C. should not be used to fill up the lacunae left by the prosecution or defence to the disadvantage of the accused.
7. Shri Balan further submitted that the objection raised by the NIA with regard to maintainability of these petitions is untenable. He submitted that in view of Section 21 of the NIA Act, no appeal or revision is maintainable against an interlocutory order. Therefore, the petitioners have rightly filed these petitions under Articles 226, 227 of the Constitution of India and Section 482 Cr.P.C.
8. Shri Prasanna Kumar, opposing the petitions at the outset submitted that the petitioners have filed the instant petitions only under Articles 226 and 227 of the Constitution of India. A petition under Article 226 against the impugned order passed by the learned Trial Judge is not maintainable at all. Even under Ar
