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IN THE HIGH COURT OF BOMBAY
Vishnu Sahai, J.
R.N. Kakkar.... Petitioner.
Versus
Hanif Gafoor Naviwala and others.... Respondents.
Criminal Writ Petition No. 842 of 1995, decided on 15-9-1995.
Advocates appeared :
R.M. Agarwal, for the petitioner.
Shirish Gupte with K.Z. Nagamia, for respondent Nos. 1 and 2.
H.H. Ponda, for respondent No. 3.
D.A. Nalawade, for respondent No. 4.
Finally, Counsel for the petitioner prayed that the compilation prepared by him be kept on record. G and M vehemently opposed his prayer. Apart from the fact that permitting filing of the compilation in this Court, which contains the entire document and evidence pertaining to the case, would amount to this Court arrogating upon itself the functions of a trial Court, which certainly is not the intention of law in a petition preferred before this Court under Article 227 of the Constitution of India, and Sections 391,400 and 482 of Criminal Procedure Code. Court is of the view that this prayer should have been made long ago. The order sheet shows that this petition is pending in this Court since 11.8.1995 and ever since then, on a very large number of date, this case has been on the Board of this Court. The Courts view, if the petitioner really wanted to file the compilation, the same should have been done much before by means of a Criminal Application. Permitting filing of the compilation on the date of hearing would not be proper. Accordingly, the aforesaid request is rejected.
Article 227-See Criminal Procedure Code, 1973-Section 482.
Section 311-Scope of.
A perusal of Section 311 of Criminal Procedure Code, shows that the power of any Court to summon any person as a witness or examine any person in attendance though not summoned, as witness or to recall and re-examine any person already examined may be exercised by it, at any stage of enquiry, trial or other proceedings under this Code.
The power of the Court under Section 311 of the Criminal Procedure Code is not an unqualified unbridled and unfettered power. The section itself qualifies or puts fetters on the powers of the Court when it provides "and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case".
Although the amplitude of the powers vested in a Court under Section 311 of the Criminal Procedure Code, 1973 is very wide, the object of exercise of such powers is not to enable the prosecution to adduce evidence which would plug-in the holes in its case, for such an exercise of power would be defeating the very object for which it has been bestowed on the Court, namely the just decision of the case. This would be a capricious exercise of power by the Court. It is a trite in law that no party can take advantage of its own wrong and if the powers are exercised under this section to enable the prosecution to plug in the holes in its case, the aforesaid principle would be given a goby.
The power under Section 311 of the Criminal Procedure Code, 1973 should be exercised by the Courts in rare cases, after the greatest circumspection and only when it is imperative for the just decision of the case. While exercising the power under this section, the Court should bear in mind that the larger the power the higher the circumspection required before exercising the same.
Section 311-Addillonal evidence-Admission of-Power to N.D.P.S. Act-Prosecution under-Tendering of original case records, samples of contraband-Application for allowing prosecution for nut can be allowed if made after conclusion of requirements and fixation of date for Judgment.
Sections 391, 400 and 482-See Constitution of India, Article 227.
Section 482-Constitution of India, Article 227-Compilution-Filing of on date of hearing-Permission of held improper.
The prayer that the compilation prepared by the Counsel for the petitioner be kept on record should have been made long ago. The order sheet (Roznama) shows that this petition is pending in the High Court since 11.8.1995 and even since then, on a very large number of dates, this case has been on the Board of the High Court. If the petitioner really wanted to file the compilation, the same should have been done much before by means of a Criminal Application. Permitting filing of the compilation on the date of hearing would not be proper. Accordingly, the aforesaid request is rejected.
2. A narration of the facts in brief would be necessary for the disposal of this petition.
The respondent Nos. 1 to 3 are being prosecuted for offences punishable under the N.D.P.S. Act and section 135 of the Customs Act. A seizure of heroin, which took place on 22-1-1988 and 23-1-1988, which is said to have been imported into India, by the respondents Nos. 1 to 3 along with an associate of theirs, who is absconding, is said to have given rise to their prosecution.
3. Following facts are not disputed by the counsel for the parties :---
(a) trial in the instant case has been expedited by orders of this Court ; and
(b) applications on which impugned orders were passed were made by the Directorate of Revenue Intelligence in which the petitioner is employed, after the closure of evidence of parties, recording of statement of accused persons (respondent Nos. 1 to 3) under section 313 of Criminal Procedure Code, conclusion of arguments of counsel for the parties and fixation of 7-8-1995 as date for judgment by the Court.
4. On 1-8-1995, an application was moved by the Directorate of Revenue Intelligence in the Court of the Special Judge, on which the impugned orders contained in Exhibit 72 were passed. It was prayed therein that the prosecution could not tender the seized drug samples and the original case papers as the same were not traceable till 28-7-1995 and today, it is learnt that they have been traced out hence :
"the prosecution may be allowed to tender the said original case records, the samples of the contraband and lead the additional evidence in the case."
The defence opposed the grant of this application on the ground that it was made far to belatedly, prejudice would be caused to the accused as their defence had already been disclosed and that the object in making it was to fill up the lacunas in the prosecution case and this was not permitted by the law as it would amount to re-trial of the accused, under the garb of adducing additional evidence. The defence also contended that the grant of this application would unnecessarily prolong the trial which had been expedited by this Court.
5. After hearing the counsel for the parties, the learned Special Judge granted prayer of the prosecution for recalling :
"P.W. 3 Mr. Gayabax M. Yadav - the then Asstt. Director of the DRI and the P.W. 5 Mr. Suresh K. Pradhan, the then Sr. Intelligence Officer of the DRI for the purpose of tendering the contraband samples in this case in the Court."
It however, rejected the prayer for tendering original records :
"as the carbon copies and the xerox copies of the original case papers have already been exhibited in the case, in view of grant of permission the prosecution to adduce the secondary evidence."
The learned Special Judge also directed that :---
"the case be kept on the date of 2-8-1995 for recalling the P.W. 3 Mr. Gayabax M. Yadav - then Astt. Director of the D.R.I. and the P.W. 5 Mr. Suresh K. Pradhan the then Sr. Intelligence Officer of the D.R.I. for tendering the samples of the contraband in the Court."
On 2-8-1995, the prosecution recalled P.W. 3 Mr. Gayabax M. Yadav and P.W. 5 Suresh Kasinath Pradhan and through their evidence, the samples of the contraband traced out by the prosecution were tendered in this case in the Court.
6. On 2-8-1995, the Directorate of Revenue Intelligence moved another application, on which the impugned orders in Exhibit 73 were passed, for :
"tendering the following original records and additional evidence based on it.
1. Original documents annexed with the affidavit dated 15-6-1995 filed by Mr. Atul Dikshit, the A.D. D.R.I. (Narcotic
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