M. Sasidharan Nambiar, J.
1. When does a trial of a criminal case terminates? Whether the trial ends when a criminal case is posted for judgment? Whether a Magistrate is competent to invoke power under Section 311 of Code of Criminal Procedure after arguments were heard and case is posted for judgment and before the judgment is pronounced? These are questions to be answered.
2. A learned Single Judge of This court in Sajeendran v. Thalakulathoor Grama Panchayat 2004 (1) KLT 69 finding that case was posted for judgment by the Magistrate and application filed by the complainant under Section 311 of the Code was thereafter allowed by the Magistrate held that trial of the case was terminated when the case was posted for judgment and consequently power under Section 311 of the Code cannot be invoked by the Magistrate. Following the same principle the same learned Single Judge in Joseph P.T. v. K.K. Rajappan and Anr. 2003 (3) KLT SN 175 : 2004 (1) KLJ (NOC) 12 held that as the case was only posted for argument trial has not been terminated and therefore Magistrate is competent to invoke the power under Section 311 of Cr.P.C. Another learned Single Judge respectfully disagreeing with that view made this reference, doubting the correctness of the decision in Sajeendran's case.
3. Section 311 of Cr.P.C reads:
Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as 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.
Section 311 enables any court at any stage of any enquiry, trial or other proceedings under the Code to summon any person as a witness or recall and examine any witness already examined if his evidence appears to be essential for a just decision. The object underlying Section 311 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 the statement of the witnesses examined from either side. The determining factor is whether it is essential to a just decision of the case. Section is couched in the widest possible terms and calls for no limitation either with regard to the stage at which the power of court should be exercised or with regard to the manner in which it should be exercised. It is not only the right but also the duty of a court to examine such of those witnesses, as it considers absolutely necessary for doing justice between the State and the subject.
4. The section is manifestly in two parts. Words used in the first part is 'may', and in second part 'shall'. First part provides a discretionary power to a criminal court. It enables the court at any stage of any enquiry, trial or proceeding to summon any one as a witness or to examine any person present in court or to recall and reexamine any person whose evidence has already been recorded. Second part is mandatory. It compels the court to exercise the power if the new evidence appears to the court essential to take a just decision of the case. There is a duty cast upon the court to arrive at the truth by lawful means. One of the important powers of the court is provided under Section 311 of the Code. Section 311 is thus couched in the widest form possible.
5. The power under Section 311 of the Code is complementary to the power provided under Section 165 of Indian Evidence Act. Section 165 provides:
The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither, the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question.
Both these sections between them confer jurisdiction on the Magistrate/Judge to act in aid of justice. The legal position has been settled by Apex Court in Jamatraj v. State of Maharashtra : 1968CriLJ231 . The power provided under Section 311 is intended to be wide in view of the repeated use of word any Justice Hidayatullah in Jamatraj's case (supra) while dealing with Section 540 of Code of Criminal Procedure of 1898 (corresponding to Section 311 of Code of 1973) held.,
Section 540 is intended to be wide as the repeated use of the word 'any' throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word 'may' in the first part and of the word 'shall' in the second firmly establishes this difference. Under the first part, which is permissive the court may act in one of three ways (a) summon any person as a witness, (b) examine any person present in court although not summoned, and (c) recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any one of them, if the just decision of the case demands it. As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution.
The same position has been reiterated by Apex Court in Mohanlal Shamji Soni v. Union of India and Anr. : 1991CriLJ1521 . It was held.
The very usage of the words such as 'any court', 'at any stage', or 'of any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. 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.
When a court finds that for a just decision of the case a witness has to be examined or a witness already examined is to be recalled and examined the court is duty bound to exercise the power under Section 311 for the purpose of arriving at the truth, if it is necessary to a just decision in the case. That power can be exercised at any stage of enquiry, trial or other proceeding.
6. The crucial question then is when does a trial ends. Can it be said that when evidence of prosecution and defence were closed and arguments were addressed arid the case is posted for judgment, the trial ends? Then can it be said that the post argument and pre judgment stage does not form part of the trial
7. The word trial is not defined in the Code of Criminal Procedure, 1973 or in the Code of Criminal Procedure, 1898. But trial was originally defined in the Code of Criminal Procedure, 1872 as follows:
the proceedings taken in court after a charge has been drawn up and includes punishment of the offender.
When the Code of 1872 was replaced by Code of 1898, the said definition was omitted. That position continued when it was replaced by Code of Criminal Procedure, 1973. Though Section 540 was originally included in Chapter XXI of the Code of 1898 which prescribe the procedure for trial of warrant cases by Magistrate, Section 311 the corresponding provision of Section 540 of the old Code is included in Chapter XXIV dealing with general provisions as to enquiries and trials. Chapter XXVIII deals with trial before the Court of Sessions. Chapter XIX deals with trial of warrant cases by Magistrates and Chapter XX deals with trial of summons cases by Magistrates. Procedures provided under Chapters XVIII to XXI are procedures provided for trial of criminal cases which include trial of sessions cases, warrant cases, summons cases and summary trials.
8. Trial before a sessions court comprise of different stages. Under Section 226 when the accused appears or is brought before the court pursuant to an order of committal under Section 209, prosecutor shall open the case describing charge brought against the accused. Section 227 provides for discharge of the accused if he considers that there is no sufficient ground for proceeding against the accused, after hearing the submission of the accused and the prosecution and considering the records and documents of the case. Section 228 provides the framing of charge. Section 229 deals with recording of the plea. Section 231 deals with recording of evidence for prosecution. Section 232 provides the power to the Sessions Judge to acquit an accused after taking the evidence for prosecution and examining the accused and hearing the prosecution and defence, if he considers that there is no evidence that the accused committed the offence. Section 233 deals with recording of defence evidence. Section 235 provides that after hearing arguments and points of law the Judge shall give a judgment. Under Sub-section 1 Sessions Judge has either to convict or acquit the accused. If the accused is convicted, he has necessarily to proceed further as provided under Sub-section 2. He has to question the accused on the sentence and only thereafter can pass a sentence according to law. Section 236 provides that in a case where a previous conviction is charged under the provisions of Section 211(7) and the accused does not admit that he has been previously convicted as alleged in the charge, the Judge after he has convicted the said accused may take evidence in respect of the alleged conviction and shall record a finding thereon. Sentence as provided under Sub-section 2 of Section 235 could only be passed after completing the stage as provided under Section 236. It is therefore absolutely clear that trial of a sessions case is not terminated at a stage after hearing the prosecution and defence as provided under Section 234 of the Code. Trial continues not only till the judgment convicting the accused is pronounced as provided under Sub-section 1 of Section 235. It continues till recording of the evidence as provided under Section 236, which is a post conviction stage, and pronounce the sentence as provided under Sub-section 2 of Section 235.
9. Similarly, Chapter XIX deals with trial of warrant cases by Magistrate. When Chapter XIX A deals with the procedure for cases instituted on a police report, B deals with cases instituted otherwise than on police report, C deals with 'conclusion of trial'. A trial of warrant case by Magistrate cannot exclude the stage provided under C which include Sections 248 to 250. Section 248 provides that after hearing the prosecution and defence and considering the evidence adduced if the Magistrate finds the accused not guilty he shall record an order of acquittal as provided under Sub-section 1. If the Magistrate finds the accused guilty and does not proceed in accordance with provision of Section 325 or Section 360, he shall hear the accused on the question of sentence and then pass sentence as provided under Sub-section 2. Under Sub-section 3 in any case under the said Chapter a previous conviction is charged under the provisions of Section 211(7) and the accused does not admit that fact, the Magistrate has to take evidence in respect of the alleged previous conviction and record a finding thereon. Magistrate can pass a sentence as provided under Sub-section 2 only thereafter. Therefore trial of a warrant case shall necessarily continue till a sentence as provided under Sub-section 2 of Section 248 is passed. That stage includes the post conviction stage of recording of evidence as provided under Sub-section 3 of Section 248. It cannot be said that trial ends by closing of the evidence and posting of the case for judgment after hearing the prosecution and the defence. Similarly trial of a summons case by a Magistrate as provided under Chapter XX starts when the accused appears or brought before the Magistrate. Magistrate shall state to the accused the particulars of the offence of which he is accused and thereafter has to record his plea. The trial thus started would culminate only by a judgment of acquittal or conviction as provided under Section 255. Therefore trial of a summons case could terminate only when the accused is acquitted or a sentence is awarded as provided under Section 255(2) of the Code.
10. True, Section 353 which deals with judgment, under Sub-section 1 provides that in every trial in any criminal court of original jurisdiction, the judgment shall be pronounced in open court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders. But termination of trial as provided under Sub-section 1 cannot be understood as providing that trial of a criminal court ends before the judgment is pronounced. As stated earlier whether it is a sessions trial or a warrant trial or a summons trial pronouncing of judgment acquitting or convicting the accused forms part of the trial as contemplated under Chapters XVIII, XIX and XX. Section 354 provides the language and contents of judgment. Section 354 makes it abundantly clear that sentence also form part of the judgment. Therefore till the accused is sentenced, judgment is not complete. Till the judgment is pronounced trial continues. Therefore it is not possible to restrict the scope of trial provided under Section 311 of the Code to a stage up to the closing of evidence or hearing of arguments and posting the case for judgment. Even if, after closing evidence for prosecution and defence, prosecution and defence were heard and case is posted for judgment to a specified future date, it cannot be said that before pronouncing judgment the trial is terminated.
11. When Section 311 provides that the power thereunder could be invoked at any stage of trial it is not possible to restrict it to the stage of closing of evidence or posting of the case for judgment. The power could be exercised till the trial is completed, provided for a just decision of the case it is essential. Section 391 of the Code empowers the appellate court while dealing with any appeal under Chapter XXIX to admit additional evidence, if it thinks additional evidence is necessary. It empowers the appellate court to take such evidence itself or direct it to be taken by a subordinate court. On hearing the appeal, if the appellate court finds that to arrive at the truth and take a just decision a particular witness should have been examined or a witness recalled and examined Section 311 would definitely enable the appellate court to recall the witness and examine him or summon and examine the witness. If that be the case one cannot say that Section 311 of the Code cannot be invoked by the trial court at the prejudgment stage before the judgment is pronounced.
12. Though it is for the prosecution or defence to establish the respective case by adducing best available evidence, there may be instances where either of the parties withhold material evidence which could be produced and if produced would be unfavourable to the party. True, a presumption as provided under illustration (g) to Section 114 of Evidence Act could be drawn in such circumstances. In such a situation a question that arises for consideration is whether the Magistrate or the Judge should simply sit as a mere umpire at a contest between two parties and declare at the end who has won and who has lost or is there not a legal duty independent of the parties to take active role in the proceedings in finding the truth and administering justice. Apex Court in Mohanlal's case (supra) held:
It is a well accepted and settled principle that a Court must discharge its statutory functions-whether discretionary or obligatory-according to law in dispensing justice because it is the duty of a Court not only to do justice but also to insure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted where under any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.
In Ram Chander v. The State of Haryana : 1981CriLJ609 the Supreme Court explained the function of the trial court as follows:
The adversary system of trial being what it is there is an unfortunate tendency for a Judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a Criminal court is to be an effective instrument in dispensing justice, the presiding Judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witness in order to ascertain the truth.
13. Court examines evidence neither to help the prosecution nor to help the accused. Evidence is examined in the interest of justice. Function of the court is to arrive at the truth. In such a situation power of the court under Section 311 of the Code cannot be robbed by providing that it could be exercised only till the case is posted for judgment. It is often that after the parties closed their evidence and arguments were addressed, the court is considering the evidence in the proper perspective. That stage may be after hearing the arguments and posting of the case for judgment and before pronouncing the judgment. If at that stage, the court finds that to do justice it is necessary to summon a witness and examine him, it is definitely the function of the court rather the duty of the court to exercise the power under Section 311 of the Code. There is nothing in Section 311 restricting that power to a stage of posting the case for judgment. So long as the judgment is not pronounced, the power provided under Section 311 could be exercised.
14. Privy Council in Basil Ranger Lawrence v. Emperor AIR 1933 Privy Council 218 had considered an identical question and held:
It is an essential principle of criminal law that trial of indictable offence has to be conducted in the presence of the accused and for this purpose trial means the whole of the proceedings including sentence.
Question whether trial continues till judgment is delivered was considered by Division Bench of Allahabad High Court in Channu Lal and Anr. v. Rex AIR 1949 Allahabad 692). The Division Bench took the view that code does not lay down the point of time when the trial is deemed to be concluded and a trial continues till the judgment is delivered. The Full Bench of Allahabad High Court affirmed the same position in Inayat and Ors. v. Rex : AIR1950All369 . In that case the question when a trial is terminated was considered with particular reference to Section 540 of the old Code. Full Bench held:
In our opinion a trial is terminated by the pronouncement of a judgment and so long as judgment has not been pronounced a trial is not terminated.
Same legal position has been followed by Ajmeer High Court in Dindayal and Anr. v. Basudeo AIR 1955 Ajmeer 21 by High Court of Orissa in Kunhu Charon Saraf and Anr. v. Radhamohan Padhi : AIR1965Ori219 by High Court of Bombay in Aeltemesh Rein v. State of Maharashtra (1990 Crl.L.J. 858) and by High Court of Karnataka in Chikkegowda and Ors. v. State of Karnataka 1982 (1) Kar.L.J. 22.
Apex Court has considered this question in Mohanlal Shamji Soni's case (supra). Their Lordships held:
Section 540 allows the Court to invoke its inherent power at any stage, as long as the Court retains seisin of the criminal proceeding, without qualifying any limitation or prohibition. Needless to say that an enquiry or trial in a criminal proceeding comes to an end or reaches its finality when the order or judgment is pronounced and until then the Court has power to use this section.
In Rama Narang v. Ramesh Narang and Ors. : [1995]1SCR456 Supreme Court considered the question whether sessions trial ends with conviction of the accused. Their Lordships held:
If the accused is convicted, Sub-section(2) of Section 235 requires that the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence and then pass sentence on him according to law. It will thus be seen that under the Code after the conviction is recorded, Section 235(2) inter alia provides that the Judge shall hear the accused on the question of sentence and then pass sentence on him according to law. The trial, therefore comes to an end only after the sentence is awarded to the convicted person.
Their Lorships held in Rama Narang v. Ramesh Narang : [1995]1SCR456 .
Under the provisions of the Code to which we have already referred there are two stages in a criminal trial before a Sessions Court, the stage up to the recording of a conviction and the stage post-conviction up to the imposition of sentence. A judgment becomes complete after both these stages are covered.
15. For the reasons discussed earlier we hold that learned Single Judge has not correctly laid the law in Sajeendran v. Thalakulathoor Grama Panchayat 2004 (1) KLT 69 and Joseph. P.T v. K.K. Rajappan and Anr. 2004 (1) KLJ (NOC) 12 : 2003 (3) KLT SN 17. We overrule the same and hold that trial as provided under Section 311 of the Code will not be terminated by closing the evidence of prosecution and defence or posting the case for judgment. Trial would stand terminated only on pronouncing the judgment either acquitting the accused or awarding the sentence after conviction.
16. As per impugned order in Crl.R.P. 1827/04, learned Chief Judicial Magistrate dismissed C.M.P.5043/04 filed by the complainant solely based on the decision of the learned Single Judge in Joseph's case(supra). Learned Chief Judicial Magistrate did not consider the petition on merit. The order is set aside and learned Magistrate is directed to consider the application on merit and pass appropriate order in accordance with law. As per impugned order in Crl.M.C. 1921/04 Chief Judicial Magistrate allowed C.M.P.3783/04 and summoned the witness to be examined as prayed for by the complainant. Learned Single Judge as per order dated 27/7/04 directed the Magistrate to record the evidence and stayed only the final disposal of the case. Challenge against order was on the ground that Section 311 could not have been invoked when the case was posted for judgment. Impugned order passed by learned Chief Judicial Magistrate is perfectly legal. We find no reason to interfere with the same. Crl.M.C. 1921/04 is dismissed. Crl.R.P. 1827/04 is allowed and learned Chief Judicial Magistrate is directed to dispose C.M.P.5043/04 afresh.