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Mansoor @ Mansoor Alam @ Mansoor Ali & Another v/s The State of Jharkhand


Company & Directors' Information:- ALAM & CO LTD [Strike Off] CIN = U60210WB1946PLC014227

    Cr. Revision No. 4 of 2016

    Decided On, 17 August 2016

    At, High Court of Jharkhand

    By, THE HONOURABLE MR. JUSTICE RAVI NATH VERMA

    For the Petitioner: Anil Kumar Sinha, Sr. Advocate, K.P. Deo, Advocate. For the State: Sanjay Kumar, A.P.P.



Judgment Text

Ravi Nath Verma, J.

1. Invoking the revisional jurisdiction of this Court under Sections 397 and 401 of the Code of Criminal Procedure (in short 'the Code') the two petitioners have questioned the legality of the order dated 18.12.2015 passed by learned Principal Sessions Judge, Chatra in Sessions Trial No.139 of 2015 whereby and where under a petition filed at the instance of the prosecution with prayer to allow the prosecution for examination of five new witnesses, has been allowed.

2. Bereft of unnecessary details, the facts of the case which is relevant for the proper adjudication of this revision, in short, is that on the basis of the fardbeyan of the informant Md. Miya which was recorded at Sadar Hospital by Sub Inspector of Police, Itkhori P.S. Case No.42 of 2015 was instituted on the allegation that though he is presently residing at village Dariyatu Tola but his ancestral property lies at village Pitiz and he along with other family members had gone for partition of that very land and other properties and while he was fixing wooden pole on his land, the accused persons having Sabal, iron rod, Lathi, spade, stick came there and assaulted the informant and his family members causing head injury to Md. Moin Ansari. When he along with family members tried to save Moin Ansari, accused persons assaulted his son Masoom Ali also causing severe injury in his head where after his son became unconscious. Only thereafter, the accused persons anticipating that the Masoom Ali is dead, left the place. Those injured persons Masoom Ali and Moin Ansari were brought to Itkhori Hospital from where they were referred to Sadar Hospital, Hazaribag but on way Masoom Ali succumbed to his injury. Md. Moin, another injured was referred to Ranchi for better treatment.

3. After investigation, the police submitted charge sheet against the accused persons where after charges were framed and witnesses were examined on behalf of the prosecution and out of eight charge sheet witnesses, prosecution examined six witnesses.

Where after a petition under Section 311 of the Code was filed by the prosecution with the prayer to permit the prosecution to examine (i) Samsuddin Mian (ii) Ahmad Mian (iii) Md. Moin (iv) Mobin Mian (v) Md. Taiyab as they were all present at the time of occurrence and they are eye witnesses of the occurrence and one of them Md. Moin had sustained injury and the presence of above witnesses would be clear from the counter case filed at the instance of the accused persons i.e. the present petitioners being Itkhori P.S. Case No.41 of 2015 wherein also the informant of the said case has stated about presence of the above witnesses at the place of occurrence being an eye witness of the occurrence. It is also stated in the petition that the Investigating Officer in collusion with the accused persons did not record the statement of those persons under Section 161 of the Code. As such, for the interest of justice and just decision of the case, the examination of those persons are necessary.

4. The court below after hearing both the parties, allowed the said petition filed under Section 311 of the Code. Hence, this revision.

5. Mr. Deo, learned counsel appearing for the petitioners assailing the order impugned as bad in law, seriously contended that the court below without appreciating the scope of Section 311 of the Code, allowed the petition for examination of persons who were not even shown as eye witnesses in the prosecution list of witnesses and only after examination of six witnesses when the informant found that most of the witnesses have been declared hostile, has tried to fill up the lacunae in the prosecution evidence by filing the said petition and that the trial court should not have interfered in the manner in which the court has exercised its discretionary power. It was also contended by Mr. Deo that the court below without applying the judicial mind allowed the petition merely relying upon the fact that the Investigating Officer had not examined those eye witnesses as well as one of the victim during investigation but on that ground alone the prayer of the prosecution for examination of those persons as witness, could not be allowed.

6. Contrary to the aforesaid submissions, the learned A.P.P. appearing for the State in support of the order impugned submitted that the court below for the just decision of the case rightly allowed the petition for examination of five witnesses filed under Section 311 of the Code and the trial court has not committed any error in appreciating the evidence and that there was no delay on the part of the prosecution in moving the said application. In support of his contention, the learned counsel has relied on the case Mohanlal Shamji Soni v. Union of India and Anr.; 1991 Crl.L.J. 1521 (SC).

7. I have considered the rival submissions of the counsels appearing for the petitioners as well as the State but before I enter into the veils of the submissions of the counsels, a reference of Section 311 of the Code is necessary for the proper adjudication of the dispute between the parties which reads as follows:-

311. Power to summon material witness, or examine person present - 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 to be essential to the just decision of the case.'

From bare perusal of the aforesaid provision, it is manifestly clear that there is two parts of the above Section. In the first part the word 'may' is used but in the second part 'shall' has been used. It means the first part gives purely discretionary authority to the Criminal Court. The legislature in its wisdom has empowered the Magistrate to issue summons to any witness at any stage of inquiry or trial under the Code (i) can summon any one as a witness or (ii) examine any person in court (iii) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part which is mandatory in nature compels the court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. It is not only a prerogative to the court but a duty has been cast upon the court to examine those witnesses which it considers absolutely necessary for doing justice between the parties.

8. In the judgement cited by the learned A.P.P. Mohanlal Shamji Soni (supra) the Hon'ble Supreme Court while examining the scope of Section 311 of the Code, held that it is cardinal rule of evidence, that the best available evidence must be brought before the court to prove the fact or point in issue. In Para 27 of the judgement the Hon'ble Supreme Court held as follows:-

"The Principal of law that emerges from the views expressed by this Court in the above decisions is that the Criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair-play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case."

In another case, Natasha Singh v. Central Bureau of Investigation (State); (2013) 5 SCC 741 in a similar situation where the prayer under Section 311 of the Code was made for examination of three new witnesses on behalf of the defence, the Hon'ble Supreme Court in Para 19 and 20 of the judgment held as follows:-

19. The Trial Court, while entertaining the application filed under Section 311 Cr.P.C., had asked the appellant to provide a brief summary of the nature of evidence that would be provided by the defence witnesses mentioned in the application, and in keeping with this, the appellant had furnished an application stating that the appellant wished to examine one Shri B.B. Sharma who was one of the panchnama witnesses, and who the prosecution had neither listed nor examined in court. Therefore, the appellant wished to examine him in defence. The second person was Shri S.S. Batra, Company Secretary of the appellant, as he was the best person to provide greater details of the company of which the appellant is the Director. The third witness was a hand-writing expert, and it was necessary for the defence to examine him regarding the correctness of the signatures of the appellant and others, particularly with respect to the signatures of the appellant.

20. Undoubtedly, an application filed under Section 311 Cr.P.C. must be allowed if fresh evidence is being produced to facilitate a just decision, however, in the instant case, the learned Trial Court prejudged the evidence of the witness sought to be examined by the appellant, and thereby cause grave and material prejudice to the appellant as regards her defence, which tantamounts to a flagrant violation of the principles of law governing the production of such evidence in keeping with the provisions of Section 311 Cr.P.C. By doing so, the Trial Court reached the conclusion that the production of such evidence by the defence was not essential to facilitate a just decision of the case. Such an assumption is wholly misconceived, and is not tenable in law as the accused has every right to adduce evidence in rebuttal of the evidence brought on record by the prosecution. The court must examine whether such additional evidence is necessary to facilitate a just and proper decision of the case. The examination of the hand-writing expert may therefore be necessary to rebut the evidence of Rabi Lal Thapa (PW.40), and a request made for his examination ought not to have been rejected on the sole ground that the opinion of the handwriting expert would not be conclusive. In such a situation, the only issue that ought to have been considered by the courts below, is whether the evidence proposed to be adduced was relevant or not. Identical is the position regarding the panchnama witness, and the court is justified in weighing evidence, only and only once the same has been laid before it and brought on record. Mr. B.B. Sharma, thus, may be in a position to depose with respect to whether the documents alleged to have been found, or alleged to have been seized, were actually recovered or not, and therefore, from the point of view of the appellant, his examination might prove to be essential and imperative for facilitating a just decision of the case.

9. In the instant case also from the F.I.R. it appears that Md. Moin had sustained injuries in the occurrence and he along with another injured Masoom Ali were referred to Sadar Hospital, Hazaribag by Itkhori Hospital and on way to Sadar Hospital one of the injured Masoom Ali died but the I.O. neither recorded the statement of injured Md. Moin nor mentioned his name in the column of charge sheet witnesses. In the counter case filed at the instance of the petitioners, the proposed witnesses Samsuddin Mian, Md. Mian, Mobin Mian and Md. Taiyab to whom the prosecution witness wants to examine, have been shown to be eye witnesses of the occurrence but neither Investigating Officer recorded their statement under Section 161 of the Code nor they were shown as witnesses in the list of prosecution witnesses.

10. I have gone through the order impugned and find that the trial court reached to the conclusion that production of such evidence by the prosecution was essential for the just decision of the case and merely on the basis that they were not examined during investigation or their names were not included in the list of witnesses, the prayer cannot be refused. It is the duty of the court under Section 311 of the Code to exa

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mine whether such additional evidence is essential to facilitate the just decision of the case. In my opinion, the court below has rightly appreciated and allowed the prayer to examine those new witnesses. Therefore, I do not find any force in the submission of the learned counsel appearing for the petitioners that only with a view to fill up lacunae, the petition for examination of three witnesses was filed at the instance of the prosecution. Obviously, the petition was filed in the midst of examination of prosecution witnesses. In my considered view, the facts and circumstances of the case requires the examination of those five witnesses for just decision of the case and the court below has rightly allowed the petition filed under Section 311 of the Code. There is absolutely nothing on record to show that there is any illegality or impropriety in the order impugned and any prejudice will be caused to the petitioners by examining those witnesses. 11. Hence, this revision application being devoid of any merit is, hereby, dismissed. The non-interference of this Court in the order impugned would not be construed as I have expressed any opinion on the merit of the case. The defence shall be at liberty to cross examine those witnesses and bring on record evidences in rebuttal if required. Application dismissed.
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