Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 126

SUPREME COURT OF INDIA
INDU MALHOTRA, AJAY RASTOGI, JJ.
V.N. Patil – Appellant
Versus
K. Niranjan Kumar and Others – Respondents
Criminal Appeal No. 267 of 2021, SLP (Crl.) No. 8965 of 2018
Decided On : 04-03-2021

Advocates appeared:
For the Petitioner(s):Shanth Kumar V. Mahale, Rajesh Mahale, Advocates
For the Respondent(s):Sidharth Luthra, Vivek Jain, Suchitra Kumbhat, Shubangni Jain, Pankaj singhal, Nirvikar Singh, Pallavi Garg, Durga Dutt, Somesh Kumar Dubey, Jitendra Nath Pathak, Rajesh Kumar, Kousik Ghosh, Shubhranshu Padhi, Ashish Yadav, Rakshit Jain, Vishal Banshal, Advocates

IMPORTANT POINT
Object underlying Section 311, Cr.P.C. is that there may not be failure of justice on account of mistake of either party in bringing valuable evidence on record or leaving ambiguity in statements of witnesses examined from either side. Determinative factor is whether it is essential to just decision of case.

Headnote:
Criminal Procedure Code, 1973 – Section 311 – Summoning of material witness – Object underlying Section 311 Cr.P.C. is that there may not be failure of justice on account of mistake of either party in bringing valuable evidence on record or leaving ambiguity in statements of witnesses examined from either side – Determinative factor is whether it is essential to just decision of case – Significant expression that occurs is “at any stage of any inquiry or trial or other proceeding under this Code” – However, discretionary power conferred under Section 311 Cr.P.C. has to be exercised judiciously, as it is always said “wider the power, greater is the necessity of caution while exercise of judicious discretion” – Aim of every Court is to discover truth – Section 311 Cr.P.C. is one of many such provisions which strengthen arms of a court in its effort to unearth truth by procedure sanctioned by law – At the same time, discretionary power vested under Section 311 Cr.P.C. has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet ends of justice – In instant case, although application was filed by Additional Special Public Prosecutor under Section 173(5) read with Section 311 Cr.P.C. but it was open for Trial Judge as well to exercise suo motu powers in summoning witnesses whose statements ought to be recorded to subserve cause of justice, with object of getting evidence in aid of a just decision and to uphold the truth – Judgment of High Court impugned set aside. (Paras 15, 18, 22 and 25)
Facts of the case:
Respondent nos. 1 to 3 are facing criminal trial in Sessions Case No. 538 of 2004 for offences under Sections 498A, 304B, 302 read with Section 34 of the Indian Penal Code and under Section 4 and 6 of the Dowry Prohibition Act, 1961 due to the death of wife of the 1st respondent under unnatural circumstances. Trial Judge, after assigning cogent reasons, allowed application filed under Section 311 Cr.P.C. to meet the ends of justice observing further that no hardship or prejudice would be caused to respondents accused, since the said witnesses and documents intended to be summoned, will certainly be subjected to cross-examination and their testification, as per the provisions of Cr.P.C.
Findings of Court:
It is not necessary that in every case, it is required to record elaborate reasons but since the matters are carried forward to this Court, the reasons, albeit brief may be, have to be recorded to facilitate this Court to understand as to what weighed with the Ld. Judge while passing the impugned judgment, moreover, when finding of reversal has been recorded by the Ld. Judge in its impugned judgment.
Result : Appeal allowed.

JUDGMENT :

AJAY RASTOGI, J.

1. Leave granted.

2. Respondent nos. 1 to 3 are facing criminal trial in Sessions Case No. 538 of 2004 for offences under Sections 498A, 304B, 302 read with Section 34 of the Indian Penal Code (hereinafter being referred to as “IPC”) and under Section 4 and 6 of the Dowry Prohibition Act, 1961 due to the death of wife of the 1st respondent under unnatural circumstances on intervening night of 2nd/3rd April, 2004 at Bangalore.

3. During pendency of the trial, an application was filed by the Ld. Additional Special Public Prosecutor under Section 173(5) read with Section 311 of Code of Criminal Procedure, 1973 (hereinafter being referred to as Cr.P.C.) for summoning the witnesses along with securing the relevant records to meet the ends of justice. The Ld. Additional City Civil and Sessions Judge, Bengaluru City, after detailed discussion and taking note of the scope of Section 311 Cr.P.C. allowed the application by its order dated 3rd September, 2016, after assigning cogent reasons in support thereof.

4. This came to be challenged by respondent nos. 1 to 3 in a petition filed under Section 482 Cr.P.C. The Ld. Judge of the High Court after recording submissions made by the learned counsel for the parties, without assigning any reasons, albeit brief, which may at least facilitate this Court to understand what weighed with the Judge in setting aside the finding recorded by the Ld. Trial Judge in its Order dated 3rd September 2016 by its impugned judgment dated 11th January, 2017.

5. Aggrieved by the order of the High Court impugned dated 11th January 2017, the appellant-complainant (father of the deceased) has approached this Court by way of special leave.

6. The background facts in brief which may be relevant for the purpose are that the marriage of Keerthi (deceased-daughter of the appellant) was solemnized with the 1st respondent on 17th February, 2002. On the intervening night of 2nd/3rd April, 2004, at about 3.30 a.m. the appellant received a call that her daughter had died. In connection with her unnatural death, on the basis of a complaint filed by the appellant (father of the deceased), Crime No. 162/2004 came to be registered at the Sanjay Nagar Police Station, Bangalore for an offence punishable under Section 302, 498A IPC.

7. During the course of trial, as per the record and evidence, the examination of all the relative-witnesses and the documentary evidence produced by the investigating officer, indicates that the second postmortem on the victim’s body was conducted on 4th April, 2004 by the team of 5 doctors in J.J. Hospital, Mumbai, in respect of which the investigating officer/PW-44 had corresponded under Exhibit P-140 to Exhibit P-142 seeking for the copy of the said second postmortem on 13th September, 2005 itself. It further reveals that the stated documents indicated above were not made available to the investigating officer during the submission of the main charge-sheet and additional charge-sheet. Ld. Trial Court had permitted to produce the documents by its order dated 30th October, 2012. Even after Exhibit P-142, the original documents of the stated second postmortem with the other relevant documents were still with the Mumbai doctors and police and PW-27 Dr. Bheemappa Havanur who conducted the first post mortem on 3rd April, 2004 turned hostile. At this stage, application came to be filed by the Ld. Additional Special Public Prosecutor under Section 173(5) read with Section 311 Cr.P.C. for summoning the witnesses and to examine the Doctor who conducted the second postmortem to meet the ends of justice.

8. Learned counsel for the respondents made various submissions in questioning the application filed under Section 173(5) read with Section 311 Cr.P.C. when the trial reached the stage of hearing and contended that the witnesses cited to be summoned for the purpose of examining them on behalf of the prosecution, are neither the witnesses examined by the investigating officer during the cours