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2019 Supreme(Online)(SC) 1046
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 15 OF 2019
(Arising out of S.L.P. (Crl.) No.7748 of 2017)
SWAPAN KUMAR CHATTERJEE … APPELLANT
VERSUS
CENTRAL BUREAU OF INVESTIGATION … RESPONDENT
J U D G M E N T
S.ABDUL NAZEER, J.
The court's power under Section 311 to summon material witnesses must be exercised with caution and not as an abuse of process. If the prosecution fails to produce a witness after repeated opportunities over an inordinate period, the court should not grant further adjournments, as it prejudices the accused.
Headnote:(A) Criminal Procedure Code, 1973 - Section 311 - Power to summon material witness - Nature of power is discretionary for the first part and mandatory for the second - Exercise of power must be for valid reasons, with caution and circumspection - It shall not be exercised if it amounts to an abuse of the process of law. (Paras 10, 11, 12)
(B) Trial - Delay - Prosecution’s failure to produce witness - Repeated adjournment of the matter over several years leads to prejudice to the accused - Prosecution cannot repeatedly seek time where evidence has been pending for an inordinate duration - Discretion of trial court in summoning witnesses should not be substituted for enabling procedural abuse. (Paras 13, 14, 15, 16)
Facts of the case:
An individual was charged in a criminal case originating in the 1980s. Throughout the trial, the prosecuting agency failed to produce a witness despite being granted permission by the trial court multiple times over a period of thirteen years. Multiple petitions were filed by the prosecution for adjournment or for summoning the same witness, all of which were allowed by the trial court despite previous orders and warnings from the High Court to conclude the trial expeditiously. The final order permitting the examination of the witness was challenged before the Supreme Court.
Findings of Court:
The court held that the power under the statute should only be invoked to meet the ends of justice and must be exercised with great caution. The allowance of repeated applications by the prosecution, where a witness has remained untraced or unavailable for over a decade, constitutes an abuse of process and causes grave prejudice to the accused. The court observed that the trial court ignored previous directives regarding the timely conclusion of the trial.
Issues: Whether the trial court acted within its discretionary powers when permitting the summoning of a witness after a thirteen-year delay despite multiple previous opportunities granted to the prosecution.
Ratio Decidendi: The court ruled that whilst Section 311 grants powers to summon witnesses, this discretion must not be used to facilitate endless litigation or shield the failure of the prosecution to perform its duties. Where a prosecution fails to satisfy the court regarding the necessity and previous non-examination of a witness, and where the delay is extreme, the interest of the accused takes precedence over the prosecution's request to recall or summon a witness at a highly belated stage.
Result: Appeal allowed; orders of the trial court and the high court quashed; application for summoning the witness dismissed.
1. Leave granted.
2. The appellant- Swapan Kumar Chatterjee has challenged the order dated 04.05.2017 in CRR No. 440/2015 passed by the High Court at Calcutta, whereby the High Court confirmed the order dated 05.12.2014 passed by the Trial Court permitting the examination of one witness Mr. H.S. Tuteja.
3. Brief facts necessary for disposal of this appeal are as under:
4. A complaint was lodged by one Mr. P.N. Khanna before the Superintendant of Police, Central Bureau of Investigation (for short 'CBI'), Economic Offences Wing, Church Lane Calcutta, where the present appellant with others was arrayed as accused in CBI case No.7/E/83 dated 20.08.1983 under Sections 477A /471/468/420/120B of the Indian Penal Code, 1860. After completion of the investigation, investigating agency filed chargesheet under the aforesaid sections and also under Section 5(1)(c)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 against the appellant and three others. The case was put on trial. Twenty nine prosecution witnesses were examined. The Public Prosecutor filed a petition praying for examination of handwriting expert Mr. H.S. Tuteja, which was allowed and a date was fixed on 24.03.2004 and then to 26.03.2004 for his examination. Prosecution was directed to issue summons to the witnesses well in advance of the date of evidence. However, Mr. H.S. Tuteja failed to appear before the Court due to which Prosecutor further sought time for fixing of a schedule till next day for his examination. This request of the Prosecutor was accepted by the Magistrate with a direction that the schedule is fixed on and from 10.05.2004 to 12.05.2004, and prosecution was directed to summon all the witnesses including Mr. H.S. Tuteja. The said witness yet again failed to turn up. The Prosecutor did not pray for re-issuing of summons and bailable warrant, but a separate petition was filed by the Prosecutor for re-summoning the witnesses including Mr. H.S. Tuteja. Such prayer was considered by the Magistrate as a last chance. From then onwards, whenever a date is fixed for examining Mr. H.S. Tuteja, he would fail to turn up and the prosecution would invariably come up with a petition either praying for time or for adjournment of the matter.
5. Interestingly, this practice has been going on unopposed for a period of thirteen years starting from the year 2004. It is necessary to notice here that the High Court of Calcutta in CRR No. 3436 of 2006 disposed of on 28.07.2011 gave a last opportunity to the CBI to procure attendance of Mr. H.S. Tuteja. It was observed that in case of failure on the part of the CBI to procure his attendance, and the attendance of other witnesses and get them examined, the Trial Court will proceed further with the trial without granting any further adjournment to the CBI keeping in mind that the case is still pending from the year 1985.
6. However, the Trial Court still allowed the prosecution time to present their witness Mr. H.S. Tuteja on 03.02.2012, who by now was nothing short of a creature of fiction and whose presence has been warranted yet unattained for over a decade. Despite summon was duly served upon, he was not present on that date also. Again, the matter was adjourned to 24.02.2012 for his evidence. Even thereafter on several dates, the CBI failed to produce the said witness.
7. Again, the High Court of Calcutta in Criminal Revision Application No.2696 of 2014 dated 15.09.2014 observed that since the trial is pending in the Trial Court for a long time, all steps must be taken by the Trial Court to conclude the trial as expeditiously as possible, preferably within coming six months.
8. On 25.11.2014, the appellant was examined as DW-1. On the same day the prosecution again filed an application to examine Mr. H.S. Tuteja. This application was allowed by the Magistrate on 05.12.2014 and said order has been confirmed by the High Court.
9. We have heard learned senior counsel and learned ASG appearing for the parties.
