High Court

Legal Reasoning

CriRevn-328-2024-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL REVISION APPLICATION NO. 328 OF 2024Chandrashen s/o Surybhan WaghmareAge: 57 years, Occ: Service,R/o: Kalsumbar, Taluka Beed,Dist. Beed.At Present Vishal Nagar,Near Nirmaldevi School, Latur.… ApplicantversusState of Maharashtra… Respondent..…Mr. Madhav Gude with Ms. J. R. Reddy, Advocates for the Applicant.Mr. N. D. Batule, APP for Respondent-State.….. CORAM :ABHAY S. WAGHWASE, J. DATED :06.02.2025ORDER : 1.Revisionist-original accused facing trial for charge underSection 306 r/w 34 of IPC and arraigned as accused no.3 therein, isaggrieved by the order passed by learned Additional Sessions Judgeon Exhibit 178 in Sessions Case No. 70 of 2014 dated 29.11.2024allowing the application moved by prosecution under Section 311 ofCr.P.C. CriRevn-328-2024-2- 2.Learned counsel pointed out that present revisionist is facingtrial vide Sessions Case No. 70 of 2014 before learned AdditionalSessions Judge, Ambajogai. He pointed out that evidence ofprosecution is over. Evidence close pursis is already tendered bylearned APP. Learned trial court thereafter proceeded to recordstatement of accused under Section 313 of Cr.P.C. on 27.02.2024 andmatter was thus posted for judgment. However, he further pointedout that, thereafter learned APP moved application Exhibit 178 on20.03.2024 praying to invoke Section 311 of Cr.P.C. for recallinghandwriting expert. That, applicant accused had resisted aboveapplication on the ground that the so called document sought to beexhibited through proposed handwriting expert was not supplied tohim under Section 207 of Cr.P.C. Secondly, it would amount tocausing prejudice to the accused as matter was already posted forjudgment. Learned counsel submitted that learned trial court oughtnot to have granted the application moved by prosecution. That, lawdoes not permit filling up lacuna at later point of time. As theimpugned order at Exhibit 178 infringes the valuable right of accusedto defend, learned counsel prays to quash and set aside the same. CriRevn-328-2024-3- 3.Learned APP strongly opposed pointing out that there is nodispute that statement of accused under Section 313 of Cr.P.C. wasrecorded and there is no further dispute that matter was posted forjudgment. However, he further pointed out that prior to the judgmentitself, prosecution had realized that there was a suicide note but itwas misplaced and not traced. Subsequently, it was traced inmuddemal. It was an important piece of evidence and was veryessential for prosecution, more particularly in view of the chargebeing under Section 306 IPC, and the purported document which isnow sought to be got proved, is in fact a suicide note and is veryimportant document for prosecution and learned trial courtcommitted no error in allowing application Exhibit 178.4.After considering the submissions of each side, there seems tobe challenge to the order passed on an application moved byprosecution under Section 311 of Cr.P.C. permitting handwritingexpert to be called for examination and for proving a document.5.Before adverting to the merits of the matter and the validity ofthe order, it would be profitable to deal with settled governingprinciples which are to be borne in mind by court while invokingSection 311 of Cr.P.C. The Hon’ble Supreme Court in the case of CriRevn-328-2024-4- Rajaram Prasad Yadav v. State of Bihar and another AIR 2013 SC3081, in para 23 has observed as under :“23. From a conspectus consideration of the abovedecisions, while dealing with an application underSection 311 Cr.P.C. read along with Section 138 of theEvidence Act, we feel the following principles will have tobe borne in mind by the Courts:a) Whether the Court is right in thinking that the newevidence is needed by it? Whether the evidence sought tobe led in under Section 311 is noted by the Court for ajust decision of a case? b) The exercise of the widest discretionary power underSection 311 Cr.P.C. should ensure that the judgmentshould not be rendered on inchoate, inconclusivespeculative presentation of facts, as thereby the ends ofjustice would be defeated. c) If evidence of any witness appears to the Court to beessential to the just decision of the case, it is the power ofthe Court to summon and examine or recall and re-examine any such person. d) The exercise of power under Section 311 Cr.P.C.should be resorted to only with the object of finding outthe truth or obtaining proper proof for such facts, whichwill lead to a just and correct decision of the case. CriRevn-328-2024-5- e) The exercise of the said power cannot be dubbed asfilling in a lacuna in a prosecution case, unless the factsand circumstances of the case make it apparent that theexercise of power by the Court would result in causingserious prejudice to the accused, resulting in miscarriageof justice. f) The wide discretionary power should be exercisedjudiciously and not arbitrarily. g) The Court must satisfy itself that it was in everyrespect essential to examine such a witness or to recallhim for further examination in order to arrive at a justdecision of the case. h) The object of Section 311 Cr.P.C. simultaneouslyimposes a duty on the Court to determine the truth and torender a just decision. i) The Court arrives at the conclusion that additionalevidence is necessary, not because it would be impossibleto pronounce the judgment without it, but because therewould be a failure of justice without such evidence beingconsidered. j) Exigency of the situation, fair play and good senseshould be the safe guard, while exercising the discretion.The Court should bear in mind that no party in a trial can CriRevn-328-2024-6- be foreclosed from correcting errors and that if properevidence was not adduced or a relevant material was notbrought on record due to any inadvertence, the Courtshould be magnanimous in permitting such mistakes tobe rectified. k) The Court should be conscious of the position thatafter all the trial is basically for the prisoners and theCourt should afford an opportunity to them in the fairestmanner possible. In that parity of reasoning, it would besafe to err in favour of the accused getting an opportunityrather than protecting the prosecution against possibleprejudice at the cost of the accused. The Court shouldbear in mind that improper or capricious exercise of sucha discretionary power, may lead to undesirable results. l) The additional evidence must not be received as adisguise or to change the nature of the case against any ofthe party. m) The power must be exercised keeping in mind that theevidence that is likely to be tendered, would be germaneto the issue involved and also ensure that an opportunityof rebuttal is given to the other party. n) The power under Section 311 Cr.P.C. must therefore,be invoked by the Court only in order to meet the ends ofjustice for strong and valid reasons and the same must beexercised with care, caution and circumspection. The CriRevn-328-2024-7- Court should bear in mind that fair trial entails theinterest of the accused, the victim and the society and,therefore, the grant of fair and proper opportunities tothe persons concerned, must be ensured being aconstitutional goal, as well as a human right.”6.Thus, the ratio that can be culled out from above, which is verylucidly spelt out in the case of Rajaram Prasad Yadav (supra), isborrowed and quoted as under :“14. A conspicuous reading of Section 311 Cr.P.C. wouldshow that widest of the powers have been invested withthe Courts when it comes to the question of summoning awitness or to recall or re-examine any witness alreadyexamined. A reading of the provision shows that theexpression “any” has been used as a pre-fix to “court”,“inquiry”, “trial”, “other proceeding”, “person as awitness”, “person in attendance though not summoned asa witness”, and “person already examined”. By using thesaid expression “any” as a pre-fix to the variousexpressions mentioned above, it is ultimately stated thatall that was required to be satisfied by the Court was onlyin relation to such evidence that appears to the Court tobe essential for the just decision of the case. Section 138of the Evidence Act, prescribed the order of examinationof a witness in the Court. Order of re-examination is alsoprescribed calling for such a witness so desired for such CriRevn-328-2024-8- re-examination. Therefore, a reading of Section 311Cr.P.C. and Section 138 Evidence Act, insofar as it comesto the question of a criminal trial, the order of re-examination at the desire of any person under Section138, will have to necessarily be in consonance with theprescription contained in Section 311 Cr.P.C. It is,therefore, imperative that the invocation of Section 311Cr.P.C. and its application in a particular case can beordered by the Court, only by bearing in mind the objectand purport of the said provision, namely, for achieving ajust decision of the case as noted by us earlier. The powervested under the said provision is made available to anyCourt at any stage in any inquiry or trial or otherproceeding initiated under the Code for the purpose ofsummoning any person as a witness or for examining anyperson in attendance, even though not summoned aswitness or to recall or re-examine any person alreadyexamined. Insofar as recalling and re-examination of anyperson already examined, the Court must necessarilyconsider and ensure that such recall and re-examinationof any person, appears in the view of the Court to beessential for the just decision of the case. Therefore, theparamount requirement is just decision and for thatpurpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently,while such a widest power is invested with the Court, it isneedless to state that exercise of such power should bemade judicially and also with extreme care and caution.” CriRevn-328-2024-9- 7.Keeping above ratio in mind and on going through theimpugned judgment, it is emerging that revisionist is facing trial forcommission of offence under Section 306 r/w 34 of IPC. There is nodispute that after commencement of trial, prosecution adduced itsevidence and even tendered evidence close pursis. Matter seems to beposted for recording statement of accused under Section 313 ofCr.P.C. on 27.02.2024 and after hearing arguments, even learned trialcourt proceeded to post the matter for judgment. However, on20.03.2024, application Exhibit 178 seems to be pressed into serviceby learned APP by invoking Section 311 of Cr.P.C. contending thereinthat suicide note was not traceable though it was seized, and atsubsequent point of time it was found in muddemal. All suchsupervening events are known to the court itself and therefore thesuicide note having been found in muddemal, which went thereinadvertently, is a crucial document for prosecution and hencepermission was sought to invoke Section 311 of Cr.P.C. to allow theprosecution to call handwriting expert. 8.Above application obviously was resisted by accused, as statedabove, on two fundamental grounds that are agitated. Firstly, suicidenote was not supplied to the accused under Section 207 Cr.P.C. and CriRevn-328-2024-10- secondly, evidence having been closed, arguments being finished andmatter being posted for judgment, now it is not open for prosecutionto fill up the lacuna and thirdly, allowing application would causeserious prejudice to the accused.9.Here, from the impugned order, more particularly para 6onwards, it is clearly emerging that suicide note which was seized bythe investigating machinery, was not produced during trial as it wasnot traceable. However, para 7 of the impugned order itself showsthat learned trial court has observed that suicide note was not foundand was finally traced in muddemal property and therefore learnedtrial court has allowed application of prosecution. 10.As regards the grounds of resistance are concerned, this Courtis of considered opinion, more particularly in view of settled lawdiscussed above, that prior to judgment, for ends of justice to meetand for just decision, when court is convinced that particular evidenceis necessary, in such circumstances, court has powers to allowproduction of evidence or leading evidence. It is very muchpermissible, much before pronouncement of judgment. Evenotherwise, accused would get opportunity to cross-examine thehandwriting expert and as such, ground of prejudice likely to be CriRevn-328-2024-11- caused has also no force. Therefore, there being no merits in therevision, following order is passed : ORDERThe Criminal Revision Application is rejected. [ABHAY S. WAGHWASE, J.]vre