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1998 Supreme(Raj) 338
Rajasthan High Court
Honble V.G. PALSHIKAR, J.
Rahul @ Babu Lal - Appellant
Versus
State of Rajasthan - Respondents
S.B. Cri. Revision Petition No. 474 of 1997
Decided On : April 16, 1998
N.S. Acharya, for Petitioner D.S. Rathore Public Prosecutor
Headnote:Cr.P.C., 1973, Sec. 311 and 313 & Narcotic Drugs and Psychotropic Substances Act, Sec 8/20 – Taking of additional evidence and examination of prosecution witness after closing of the evidence of prosecution and completion of examinations of accused u/Sec. 313 Cr.P.C. – Held – Where compliance of certain provisions of law is held mandatory, a corresponding duty arises in the court to see that such compliance is made as evidence of such compliance is essential for just and proper decision of the case tried under the Special enactments – Additional evidence u/Sec. 311 are permissible. (Paras 25 to 28)
It will be seen that the first part of the section permits a Court at any stage to call and examine or recall and re-examine any witness either suo moto or on the application of the prosecution. The first part takes care of applications by the parties to the litigations for this purpose. However, the second part mandates that the Courts shall summon and examine or recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. In my opinion, all the judgments stated above also state that the duties cast on the Court to see that the evidence essential to the just decisions of the case is duly recorded. It thus, empowers the courts even to fill up the lacuna that may advertently or inadvertently be kept in the case by the prosecution. (Para 25)
Several provisions of the N.D.P.S. Act have been held to be mandatory in nature and corresponding duty is therefore, cast on the Court to ascertain whether these mandatory provisions are complied with by the prosecution or not. Consequently, after the passage of such special enactment, it becomes a statutory duty of a court to consider if evidence essential for such decision of the case is adduced before it or not. The court may not or should not allow a person to go unpunished for non-compliance of such statutory provision. If obtaining compliance of that provision is possible during the conduct of the trial, it cannot be said that lapse on the part of the prosecution not to examine a witness to prove that the custody of narcotic and psychotropic drugs was always to the proper person should be allowed to exist to the benefit of the accused as the possibility of such lapse being deliberately committed by the prosecution cannot be over-ruled. In such circumstances, in my opinion it is the duty of the Court to see that such witness is summoned and such lacuna which exist deliberately or otherwise is fell down. (Para 26)
(2). Brief facts, giving rise to this revision petition, as stated by the accused petitioner, are that on a challan having been filed against the petitioner for offence punishable under Sec. 8/20 of the Narcotic Drugs and Psychotropic Substances Act (for short, `the NDPS Act) trial was conducted. The prosecution closed its evidence on 19th December, 1996 and after recording the statement of accused under Section 313 Cr.P.C., the case was fixed for final hearing. When the case was being heard on 3.1.97, during the course of arguments, it was considered by the prosecution that where the sample remained from 1.5.95 to 5.5.95, has not been proved. After about 2-1/2 months and by seeking three adjournments the prosecution filed an application on 17.3.97 under Sec. 311 of the Code of 1973, which was replied by the accused on 22.3.97. In the application it was prayed by the prosecution that evidence of one Ganga Ram, who was the Malkhana Incharge, may be recorded, though his name was not there in the list of witnesses. The learned trial Judge vide its order dated 30.8.97 decided the application and allowed the prosecution of addi- tional evidence in the shape of witness Ganga Ram.
(3). This order dated 30.8.97 is impugned in this petition on the ground that permitting the examination of Ganga Ram as prosecution witness after the evidence of the prosecution was closed and examination of the accused under Sec. 313 of the Code of 1973 was completed, would seriously prejudice the accused and would amount to filling up deliberate lacunae left in the prosecution by the prosecuting agency. Several decisions were cited in support of this proposition. In all these decisions what has been laid down by the courts in India is that power to record additional evidence under Sec. 311 of the Code of 1973 is absolute but it should be cautiously exercised.
(4). In view of the fact that several decisions of this Court are relied upon for rejecting the taking of additional evidence, I feel it necessary to write an elaborate judgment on this issue.
(5). In order to correctly assess the scope and extent of the provisions of Section 311 of the Code of 1973, it would be necessary to trace the history of this law. Prior to 1973 Code, criminal procedure was controlled by the Code framed in 1898. Section 540 of the Criminal Procedure Code, 1898 (hereinafter referred to as ``the Code of 1898), reads thus:
``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 and 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 essential to the just decision of the case.
(6). Several judgments of the different High Courts in India and the Supreme Court have been recorded regarding scope and extent of the power of the Section of 540 of Code of 1898. This Code was repealed and substituted by new Code in 1973 by Code of 1973 which gives similar powers to the Courts by Sec. 311 of the Code of 1973. It reads thus;
``311 Power to summon material witness, or examine person present.
Any Court may, at any stage of an 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 and 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.
(7). A comparative reading of Sections 540 of the Code of 1898 and Section 311 of the C
