High Court · 2012

2. taki, learned counsel for the accused. I have heard Mr. Z Kamar, learned Public Prosecutor, Assam, and Mr. S Ka In the case at hand, as the reference is substantially based on facts, t 3. he background events, which have led to the making of the reference, need to b e, therefore, taken not of. The material facts, leading to this reference, are, in brief, be set out as under: By judgment and order, dated 30-12-2000, the learned Judicial Magistrate (i) , 1st Class, Saraideo, Sonari, district Sibasagar, convicted the accused under S ection 324 IPC and sentenced him to suffer rigorous imprisonment for a period of one year and pay a fine of Rs. 500/- and, in default of payment of fine, rigoro us imprisonment for a period of three months. Aggrieved by his conviction and th e sentence passed against him, the accused preferred an appeal, which gave rise to Criminal Appeal No. 6(1) of 2001. (ii) By judgment and order, dated 10-10-2001, the learned Sessions Judge, Sib sagar, has partly allowed the appeal and remanded the case to the learned Court below with certain directions.

4. Before I go to the directions, given by the learned Sessions Judge in ap peal, it may be noted that the learned appellate Court has observed that in the appeal, a prayer, for remand of the case to the trial Court, was made on two gro unds, namely, the witnesses were not thoroughly examined to bring on record the defence case; and, secondly, the investigation had apparently been taken up on t he basis of Borhat Police Station GD Entry No. 28, dated 03-04-1999, but the sai d GD Entry was not produced in the learned trial Court and, according to the lea rned counsel for the appellant, any oral information of cognizable offence, reco rded in the General Diary, shall be construed as the FIR within the meaning of S ection 154 Cr.P.C.; but in the case at hand, the relevant GD Entry was not produ ced at the trial and the charge sheet was submitted on the basis of a subsequent ly lodged First Information Report (in short, ’FIR’). Learned counsel for the ap pellant also submitted, in the learned appellate Court, that the accused-appella nt would be prejudiced if he was not given any opportunity to bring the defence case on record as well as cross-examine the investigating officer on the entry m ade, in the General Diary, on 02-04-1999. Reacting to the submissions, so made b y the learned counsel for the appellant, the learned Sessions Judge observed and directed as under: (cid:28)5. It is true that the defects pointed out by the learned counsel cannot be attributed on the part of the trial Court. However, justice demands fair and de fects less trial sans whether it was on the part of his lawer, the investigation Since the case is destined for remand, I am not adverting or discussing officer or on the part of the Court. It appears to me that non production of th e GD Entry was a lacuna in the trial. To remove any kind of prejudice from the m ind of the accused, it is desirable that the accused should be given an opportun ity to re-cross-examine the I.O. on the basis of the GD Entry No. 28. I am also of the view that if the case is remanded back to bring on record the first GD En try, the accused may be given an opportunity to re-cross-examine the remaining w itnesses, who are available for this purpose. 6. the merit of the prosecution case or the impugned judgment. 7. In the result, the appeal stands allowed only for the limited purpose of re-cross-examination of witnesses. It is made clear that if no witness is avail able for further cross-examination no benefit can be given to them on this groun ds. 8. Since the Court of Judicial Magistrate of Charaideo. He is directed to a fford an opportunity to the accused to re-cross-examine the witnesses at his cos t. Thereafter the learned Magistrate shall proceed to write a fresh judgment. Th e proceeding shall be decided as early as possible and no unnecessary adjournmen t shall be given to the accused. 9. 0.01 and receive further order. 10. The accused is directed to appear before learned SDJM, Charaideo on 19.1 Return the L/C record with a copy of this judgment immediately. (cid:29)

5. On receipt of the case, on remand, the learned Magistrate, as transpires from the order, dated 25-11-2005, whereby this reference has been made, passed an order, on 15-10-2001, fixing the case for re-cross-examination of witnesses, including the investigating officer, directing him to produce the GD Entry and, during this course, PWs 1, 2, 3, 4 and 6 were further cross-examined and dischar ged; but on 11-03-2004, the learned Magistrate directed re-examination of the in vestigating officer to bring on record the GD Entry No. 28, dated 02-04-1999, of Borhat Police Station, by invoking the provisions of Section 311 Cr.P.C.

6. Consequently, the investigating officer was re-examined, re-cross-examin ed and discharged and, thereafter, the present reference, as indicated above, ha s been made. The reason for making the reference, which has been assigned by the learned Judicial Magistrate, read as under: (cid:28)Now the question arises in the mind of this Court as to whether an witness can be (cid:28)re-cross-examined (cid:29) without his (cid:28)re-examination (cid:29)? Section 138 of Indian Evidence Act, 1872 clearly speaks ’Order of examination’ i .e. of witnesses. This provision says that the witnesses shall be first examined -in-chief, then (if the adverse party so desires) cross-examined, then (if the p arty calling being so desires). This provision clearly speaks that re-examinatio n shall be directed to explanation of matters referred to in cross-examination a nd if new matter is, by permission of the Court, introduced in re-examination, t he adverse party may further cross-examine upon that matter. On the other hand, Section 137 of the Indian Evidence Act, 1872 defines only 3 (three) types of examination of witnesses i.e. i) examination-in-chief ii ) cross-examination and iii) re-examination only, but the said Act nowhere defin es (cid:28)Re-Cross-Examination of witnesses (cid:29). This Court, on the basis of the aforesaid discussion finds it to be sati sfactory that the re-cross-examination of PW1, PW2, PW3, PW4 and PW6 in this cas e, in accordance with the said judgment and order of the said Hon’ble Appellate Court, involves a question of admissibility of said (cid:28)re-cross-examination (cid:29) of sa id witnesses as per provision of Indian Evidence Act. And as such, in opinion of this Court its determination is necessary for the disposal of this case. (cid:29)

7. While considering the present reference, it needs to be noted that Secti on 311 Cr.P.C. states that any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any prson 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 a nd re-examine any such person if his evidence appears to it to be essential to t he just decision of the case.

8. A patient reading of the Section 311 Cr.P.C. clearly shows that this Se ction is divided into two parts. While the word used in the first part, is, ’may ’, the word used in the second part, is, ’shall’. It would, therefore, logically follow that the first part of Section 311 Cr.P.C. is permissive in nature and g ives a discretion to a Criminal Court to act, at any stage of enquiry, trial or other proceeding, in one of the three ways, namely, (1) to summon any person as a witness, or (2) to examine any person in attendance, though not summoned as a witness, or (3) to recall and re-examine any person already examined.

9. The second part of Section 311 is, however, mandatory in nature and cas ts an obligation on the Court (i) to summon and examine or (ii) to recall and re -examine any such person if his evidence appears to be essential to the just dec ision of the case. The language, employed in Section 311, clearly shows that this section 10. is couched in widest possible terms and do not limit the discretion of the Court in any manner. However, the wider the power, more cautious shall be the exerci se thereof. No exercise of power, in a judicial proceeding, can be arbitrary an d, more so, the power to call or re-examine a witness. Whereas the first part of Section 311, as already indicated above, gives a discretion to the Court to cal l, recall and re-examine any person as a witness, the second part of this sectio n does not really give any discretion to the Court; rather, it clarifies that if a Court forms the view, in the facts of a given case, that the evidence of the person, who is sought to be called, recalled or re-examine, is essential to the just decision of the case, it would be mandatory for the Court to call, re-call or re-examine a person as a witness. This mandatory exercise of power can also b e to obtain fresh evidence provided that the Court forms a view, as indicated he reinbefore, that bringing of such fresh evidence on record is essential to the j ust decision of the case.

11. Though the law requires the parties to produce, before the Court, the b est available evidence, the fact remains that even in a criminal trial, prosecut ion as well as defence has the right to choose their witness or witnesses and al so as to what evidence they would adduce. Nonetheless, they are bound to adduce the best available evidence. The Court has no power to compel either the prosecu tion or the defence to examine any particular witness. This embargo placed on t he powers of the Court, i. e. , the limitation of not directing either the prose cution or the defence to examine any particular witness as their witness, is sou ght to be balanced by the legislature with the help of the provisions contained in Section 311 inasmuch as the legislature has, with the help of Section 311, em powered the Criminal Court to call, recall or re-examine any person as witness. The only rider, which Section 311 attaches to the exercise of this power, is th at a criminal court cannot call, recall or re-examine any person, as witness, un less examination of such a person is, in the opinion of the Court, essential for a just decision of the case. If, however, the Court is of the view that eviden ce of a particular witness is necessary for reaching a just decision of the case , the Court, either on its own or on the application of any of the parties conce rned, call, recall or re-examine any witness as long as it does not cause prejud ice to any of the parties concerned or does not give an undue advantage to any o f such parties.

12. This kind of power, which Section 311 vests in a court, is not peculiar to the criminal law inasmuch as similar provisions have been made even in respe ct of civil courts in the form of Order X, Rule 2, Order X, Rule 14 and Order XV III, Rule 17. Even Section 165 of the Evidence Act recognizes court’s power to p ut any question to any witness, at any time, which appears to the Judge as neces sary for a just decision of the case or in order to discover or obtain proof of relevant facts.

13. Coupled with the above, what, now, needs to be noted is that Section 137 of the Evidence Act explains what examination-in-chief is, what cross-examinati on is and what re-examination means. Section 137 of the Evidence Act is, therefo re, reproduced below: (cid:28)137. Examination-in-chief. - The examination of a witness by the party who call s him shall be called his examination-in-chief. Cross-Examination. - The examination of a witness by the adverse party shall be called his cross-examination. Re-Examination. - The examination of a witness, subsequent to the cross-examinat ion by the party who calls him, shall be called his re-examination. (cid:29)

14. Close on the heels of Section 137 of the Evidence Act, Section 138 gives the order of examination by providing as under: (cid:28)138. Order of examinations. - Witnesses shall be first examined-in-chief, then (if adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts, but the cro ss-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination. - The re-examination shall be directed to the expla nation of matters referred to in cross-examination; and, if new matter is, by pe rmission of the Court, introduced in re-examination, the adverse party may furth er cross-examine upon that matter. (cid:29) From a careful reading of Section 138, it clearly follows that the Evide 15. nce Act has not used the expression re-cross-examination. Thus, re-cross-examina tion is essentially nothing, but further cross-examination, which obviously foll ows re-examination. In other words, a witness can be re-examined, in order to ex plain matters referred to in the cross-examination and if any new matter is, by permission of the Court, introduced in the re-examination, the adverse party may further cross-examine upon that matter. The re-cross-examination, therefore, me ans, as indicated hereinbefore, further cross-examination of a witness, who has been recalled and re-examined.

16. In the case at hand, the investigating officer (PW6) had been examined, cross-examined and discharged. Thereafter, for the reasons assigned by the learn ed Sessions Judge, in his judgment and order, dated 10-10-2001, the learned Sess ions Judge directed, in effect, the learned trial Court to have the GD Entry No. 28, dated 02-04-1999, produced in the Court and, then, give an opportunity to t he accused to further cross-examine the investigating officer on the contents of the said GD entry.

17. In view of the fact that, in terms of the directions of the learned Sess ions Judge, which are not challenged, the Investigating Officer was required to produce the said GD Entry, it logically followed that he was required to prove t he said GD Entry and, on proof thereof, if the prosecution wanted, it could ask relevant questions and, thereafter, the defence had the right to further cross-e xamine the investigating officer (PW6) on the contents of the said GD Entry. It is with this purpose that the directions, as indicated by the judgment and order , dated 10-10-2001, were passed by the learned Sessions Judge.

18. There is no expression, in the Evidence Act, as re-cross-examination and , hence, re-cross-examination really means further cross-examination of a witnes s, who has been re-examined. In the case at hand, since the learned Court below has, by invoking its power under Section 311 Cr.P.C., got the relevant GD Entry produced, the examination of the investigating officer, in order to prove the en try contained in the said GD Entry, is his re-examination and if the defence, so wishes, it shall be allowed to further cross-examine the investigating officer and this is what re-cross-examination would mean.

19. The reference stands answered as indicated above.

20. all stand disposed of. With the above observations and directions, this criminal reference sh

21. Send back the LCR.