Lal Babu Rai v. The State Of Bihar

Patna High Court Cr.Misc. No.15883 of 2011 (2) dt.17-08-2012 2008, the informant went to his village Bahroad (Rajasthan) for some urgent work and returned to Patna on 6th February 2008, received information from reliable sources that the landlord, Lal Babu Rai (petitioner no.1) and Ram Ranjan Rai @ Ram Rai (Petitioner no.2) along with others broke open the lock of the shop and took away the entire articles and put their own lock and when his wife went to enquire his son abused. It appears that the trial continued for substantial number of years but the prosecution witnesses did not appear to support the contention. The evidence of prosecution witnesses was closed on 28th October 2010 which has been stated in Para-7 of the petition and posted the case to 4th December 2010 for statement of accused. On 15th January 211 the court took statement of accused petitioners under Section 313 Cr.P.C. in which they denied the story alleged against him and claimed to be innocent and they also filed a petition stating that they did not want to lead evidence in defence whereupon the case was posted for argument on 24th January 2011. While the matter was pending for judgment, a petition with Vakalatnama was filed on behalf of informant under Section 242(2) read with Section 311 Cr.P.C. and the same was not served on the lawyer of the petitioners. The court fixed the case on 29th January 2011 for service of copy on the lawyer of the 3 Patna High Court Cr.Misc. No.15883 of 2011 (2) dt.17-08-2012 petitioner and for filing rejoinder. The case was again adjourned on the 9th February 2011 for filing rejoinder. Petitioners filed rejoinder on 11th February 2011 to the petition filed by the informant O.P.No.2 making a statement that the application filed u/s 311 Cr.P.C. is not maintainable as all the recourses for the appearance of informant was taken by the court but when he did not turn up, only then the court had no alternative but to take aforesaid recourse. Counsel for the petitioners submits that the court below has wrongly exercised the power under Section 311 Cr.P.C. and that too, after two years from the date of closure of evidence of the prosecution and there was no justification to allow the informant to lead evidence. Counsel for the State has disputed the argument and submitted that from the petition that has been filed by the informant, i.e. Annexure-1 it appears that he has explained reason for non-appearance. In Para-4 it has been specifically submitted that the informant did not ever receive any summons or process of the case to appear and give the evidence and surprisingly without any service of notice, evidence of prosecution was closed. He has further submitted that the informant and other witnesses were ready to lead evidence in support of prosecution, as they are fully 4 Patna High Court Cr.Misc. No.15883 of 2011 (2) dt.17-08-2012 acquainted with the facts and circumstances of the case. Having considered the rival contention of parties, this Court has to examine as to whether the court has rightly exercised the power u/s 311 Cr.P.C. or not. Section 311 provides power that at any stage if the court feels that it is essential for ends of justice, the court can exercise the power to allow the parties to led evidence. Section 311 Cr.P.C. is as follows: “Power to summon material witnesses, 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”. Power under Section 311 has been considered by the Hon’ble Supreme Court in the case reported in (2007)1) PLJR 10 (SC) (U.T.Dadra & Haveli v. Fatehsinh Mohansinh Chauhan) where the Hon’ble Supreme Court has said that of course the parties cannot be allowed for filling up the lecuna but if the court 5 Patna High Court Cr.Misc. No.15883 of 2011 (2) dt.17-08-2012 feels that it is essential for the ends of justice to lead the evidence, then the court can exercise the power. In that context, Para-11 of the aforesaid judgment is apt to be quoted which is quoted as follows: “Para-11. In Mohanlal Shamji Soni vs. Union of India & Anr. AIR 1991 SC 1346 it was observed that it is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. It is the duty of a Court not only to do justice but also to ensure that justice is being done. It was further held that the second part of the Section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case. It was emphasized that power 6 Patna High Court Cr.Misc. No.15883 of 2011 (2) dt.17-08-2012 is circumscribed by the principle that underlines Section 311 Cr.P.C., namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Further, that the power must be used judicially and not capriciously or arbitrarily. It was further observed that evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties and the discretion of the Court must obviously be dictated by exigency of the situation and fair play and good sense appear to be the safe guides and that only the requirement of justice command the examination of any person which would depend on the facts and circumstances of each case.” “Finally, it was held that the proposition that the Court cannot exercise power of re-summoning any witness if once that power was exercised, cannot be accepted nor can the power be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during arguments. Similar view has been taken in P. 7 Patna High Court Cr.Misc. No.15883 of 2011 (2) dt.17-08-2012 Chhaganlal Daga vs. M. Sanjay Shaw (2003) 11 SCC 486 where permission granted by the Court to a complainant to produce additional material after evidence had been closed and case was posted for judgment was upheld repelling the contention that production of the documents at that belated stage could amount to filling in a lecuna” Now while applying this principle that has been decided by the Hon’ble Supreme Court it has to be seen whether the statement mentioned in the petition qualifies the parameter fixed for exercise of power under Section 311 Cr.P.C. by the prosecution or not and for coming to a right conclusion it will be useful to examine the statement made in the petition filed by the complainant. In Para-2 the complainant has stated that they could suddenly know that evidence has been closed, statement of accused u/s 311 has been recorded in the case is fixed for argument. In Para-4 the complainant has stated that the petitioner and any other witness has never received any process and surprisingly without any service report, the evidence was closed. In Para-5 he has stated that the petitioners and other witnesses are ready to give evidence, in support of their case a they are fully acquainted with the facts and circumstances of the case. 8 Patna High Court Cr.Misc. No.15883 of 2011 (2) dt.17-08-2012 In view of the statements mentioned in different paragraphs of the petition it appears that he has assigned the reason for not being present in the court for giving evidence and one of the reasons that has been said is that they had not received any notice whatsoever issued in this case. In view of the aforesaid statement and the law decided by the Hon’ble Supreme Court, this Court feels that it is in the interest of justice that the informant was rightly allowed by the court below to lead their evidence and this Court does not find any error in the order impugned. But one thing is very clear that this matter is of 2008, the statement of accused has already been recorded, it will be in the interest of justice that the court below should concluder all the exercise of trial within nine months from the date of receipt/production of copy of this order, subject to the conditions that the accused must co-operate in the trial. With this observation, this petition is dismissed. Jay/- (Shivaji Pandey, J)