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SUPREME COURT OF INDIA
Ranjana Prakash Desai, N.V. Ramana,
Mannan Sk & Ors. – Appellants
Vs.
State of West Bengal & Anr. – Respondents
CRIMINAL APPEAL NO.1307 OF 2014 [Arising out of Special Leave Petition (Crl.) No.8395 of 2012]
Decided On : 3-07-2014
AIR 1991 SC 1346; (1999) 6 SCC 110; (2004) 4 SCC 158 – Relied upon
AIR 1980 SC 1314; (2005) 10 SCC 701; (1989) 4 SCC 436 – Distinguished
(1985) Cr L.J. 1288; (2012) 7 SCC 56; (2008) 15 SCC 652 – Referred
Facts of the case:
A petty altercation over a tape recorder resulted in a major incident in which bombs were hurled at Rupchand S.K. - the father of PW8-Nurul Islam. Incident occurred on 13/12/1992. Rupchand S.K. suffered grievous injuries. He was taken to a local hospital. From there he was shifted to Berhampore hospital where he breathed his last. On 14/12/1992 a complaint was lodged by the son of deceased Rupchand Sk - PW8-Nurul Islam with Raghunathpur Police Station on the basis of which FIR was registered. In the FIR PW8- Nurul Islam named nine persons. Initially the case was registered under Sections 447, 326 read with Section 34 of the Penal Code and Sections 3 and 4 of the Explosives Substances Act. After the death of Rupchand Sk, Section 304 of the Penal Code was added.
At the trial PW15-SI Dayal Mukherjee, the Investigating Officer, was examined and re- examined. He stated in his evidence that he had recorded deceased Rupchand Sk's statement at the scene of offence. In the cross- examination he stated that he had recorded one page statement of deceased Rupchand S.K. This statement was not brought on record.
One month thereafter the prosecution moved an application for recalling PW15-SI Dayal Mukherjee because the prosecution wanted to bring on record statement of deceased Rupchand S.K which it had inadvertently omitted to do. Prosecution claimed that after death of Rupchand Sk the said statement became his dying declaration.
The trial court rejected the said application.
The High Court reversed the trial court's order.
Finding of the Court;
No interference is warranted.
Result:
Appeal dismissed.
The legal document discusses the application of Section 311 of the Criminal Procedure Code (CrPC) concerning the recall of witnesses to facilitate the discovery of truth during criminal proceedings. The key points are as follows:
Purpose of Section 311, CrPC: The section grants courts broad powers to summon, examine, recall, or re-examine witnesses at any stage of a trial or inquiry to ensure a just and truthful resolution of the case. The primary objective is to uncover relevant facts and facilitate a fair trial.
Criteria for Exercise of Power: The exercise of this power must be guided by the necessity for a just decision. The evidence sought should be essential to the case, and its admission should not cause prejudice to the accused or be used to fill procedural lacunae improperly.
Circumstances for Recall: The court may recall a witness if:
The evidence is not intended to fill gaps or cause prejudice but to clarify or establish facts crucial for justice.
Avoiding Prejudice and Lacuna Filling: The court must exercise caution to prevent the power from being misused to fill procedural gaps or disadvantage the accused unfairly. The decision should be based on the facts and circumstances, ensuring fairness for all parties.
Timeliness of Application: While delays in making such applications can be a concern, the courts have clarified that applications made promptly after the re-examination of a witness are generally acceptable, even in cases with systemic delays.
Judicial Discretion and Responsibility: The courts have the responsibility to exercise this power judiciously, ensuring that it contributes to the truth-finding process without causing undue prejudice or prolonging the trial unnecessarily.
Implication for Evidence: The evidentiary value of the evidence sought through recall, especially in relation to statements like dying declarations, is a matter for the trial court to determine independently, and the appellate courts emphasize that their role is not to pre-judge such aspects.
Overall Approach: The courts favor a flexible, judicious approach that prioritizes justice and truth, allowing for the correction of inadvertent mistakes while safeguarding the rights of the accused. The exercise of power under Section 311 should be aligned with the principles of fairness, relevance, and necessity.
In summary, the document underscores that the power to recall witnesses under Section 311 is a vital tool for ensuring a comprehensive and fair trial but must be exercised with caution, fairness, and in accordance with the principles of justice.
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. In this appeal order dated 11/5/2012 passed by the High Court of Calcutta is under challenge. By the impugned order the High Court reversed the trial court's order which had rejected the application filed by the prosecution under Section 311 of the Code of Criminal Procedure, 1973 (for short, 'the code') to recall the Investigating Officer.
3. A petty altercation over a tape recorder resulted in a major incident in which bombs were hurled at Rupchand S.K. - the father of PW8-Nurul Islam. Incident occurred on 13/12/1992. Rupchand S.K. suffered grievous injuries. He was taken to a local hospital. From there he was shifted to Berhampore hospital where he breathed his last. On 14/12/1992 a complaint was lodged by the son of deceased Rupchand Sk - PW8-Nurul Islam with Raghunathpur Police Station on the basis of which FIR was registered. In the FIR PW8- Nurul Islam named nine persons. Initially the case was registered under Sections 447, 326 read with Section 34 of the Penal Code and Sections 3 and 4 of the Explosives Substances Act. After the death of Rupchand Sk, Section 304 of the Penal Code was added.
4. After the charges were framed the trial began. PW15-SI Dayal Mukherjee, the Investigating Officer, was examined on 18/2/2011. He was re- examined on 17/5/2011. He stated in his evidence that he had recorded deceased Rupchand Sk's statement at the scene of offence. In the cross- examination he stated that he had recorded one page statement of deceased Rupchand S.K. This statement was not brought on record.
5. One month thereafter on 16/6/2011 the prosecution moved an application for recalling PW15-SI Dayal Mukherjee because the prosecution wanted to bring on record statement of deceased Rupchand S.K which it had inadvertently omitted to do. Needless to say that it is the prosecution case that after death of Rupchand Sk the said statement became his dying declaration.
6. The trial court vide order dated 22/6/2011 rejected the said application. The trial court observed that the case was at the stage of argument and no explanation was given by the prosecution as to why the statement of deceased Rupchand S.K. was not brought on record by the Investigating Officer. The trial court noted that PW15-SI Dayal Mukherjee was examined on 18/2/2011 and re-examined on 17/5/2011. According to the trial court if the prosecution is allowed to recall PW15-SI Dayal Mukherjee that would enable the prosecution to fill-up the lacuna. The trial court relied on State of Rajasthan v. Doulat Ram[AIR 1980 SC 1314] and Mohan Lal Shamji Soni v. Union of India[AIR 1991 SC 1346]. The trial court observed that re-examination of PW15- SI Dayal Mukherjee is not essential for the just decision of the case.
7. Being aggrieved by this order the complainant filed an application under Section 401 read with Section 482 of the Code in the High Court. The High Court reversed the trial court's order. The High Court observed that non-exhibiting of the statement of deceased Rupchand Sk was mistake of the prosecution and no advantage can flow from the said mistake to the accused. The High Court further observed that existence of the statement was known to the accused and, hence, no prejudice would be caused to them. The said order is challenged in this appeal by the appellants-accused.
8. We have heard learned counsel for the parties at some length. We have perused their written submissions. Mr. Pijush K. Roy, learned counsel for the appellants submitted that the incident took place 22 years back. The statements of witnesses were recorded under Section 161 of the Code within a week from the date of incident. The Investigating Officer was examined and cross-examined. The case is set for final arguments and, therefore, it would be unjust and unfair to recall the Investigating Officer. His recall would cause serious prejudice to the appellants. This is clearly an attempt to fill-up the lacuna which should not be allowed. Cou
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