1. In this petition filed jointly by the State and the Special Investigation Team, petitioners have challenged an order dated 11^th October 2010 passed by the learned Additional Sessions Judge in Sessions Case No.152 of 2002. The Sessions trial pertains to post-Godhra riots at Gulbarg Society, Ahmedabad where several people lost their lives. During the course of the trial, the prosecution had examined one Ashish Khaitan, PW 313 at Ex.1091. He was at the relevant time, working as reporter of one Tehelka News Magazine. He had allegedly carried out sting operation on some of the accused involved in the said Sessions Case wherein before the camera they had allegedly made certain voluntary disclosures which would have bearing on their involvement in the said case.
2. Later on, the prosecution filed application Ex.1457 on 11.10.2010 before the Sessions Court and prayed that the said prosecution witness No.313 be recalled under section 311 of the Criminal Procedure Code for further examination. In the application, it is stated that the said witness has deposed about the confessions of the accused Madan Raval, Prahlad Raju and Mangilal Jain. He has produced DVD and the Micro-chips on which such confessions said to have been made are recorded. Said witness has also identified such accused in his deposition before the Court stating that on the basis of the DVD prepared during the sting operation, he was able to identify the accused by face as well as from their voices. In the application, it is further stated that it is of great importance to bring on record evidence through the said witness that the DVD contains voices of these very accused. Such evidence can come only from the said witness. Recalling the witness would cause no prejudice to the defence since it would be open for the accused to cross-examine the witness on such further evidence.
3. At one stage, on behalf of the concerned accused, their advocate put an endorsement that they have no objection to the application being granted. On the basis of such endorsement, the learned Sessions Judge also passed order to the following effect:
"On behalf of the accused, learned advocate has put an endorsement that there is no objection to the application being granted. Therefore, the application is not heard on merits and since there is no objection raised by the accused, the same is granted. Prosecution to ensure presence of the witness on the next date."
Subsequently, however, advocate of the accused filed a pursis also on the same date stating that the endorsement was made due to communication gap with his Senior Advocate. Such endorsement of no objection may, therefore, be ignored and arguments be permitted. On this pursis, learned Judge passed the following order:
"Since no objection is raised by the prosecution, this application is allowed. Order passed below Ex.1457 is deleted."
Thereupon, arguments of both sides were heard and the impugned order came to be passed. The learned Judge was pleased to dismiss the same primarily on the following grounds :
1. The witness is a prominent reporter. The audio and video prepared through sting operation have been produced before the Court, on which basis, he has stated that he was able to identify the accused by face and voice. At that stage, though all instruments were present before the Court, the prosecution did not think it proper to gather the identification of the accused in the DVD.
2. DVD has been sent for matching the voice samples of the accused and the report is not received so far.
3. The witness has deposed in detail about the sting operation and what conversation took place with the accused. Under the circumstances, there is no question of identifying the voices of the accused before the Court.
4. The witness cannot be stated to be an expert who can depose about the voice of the accused in the recordings made during sting operation, which is a matter of scientific analysis.
5. With respect to the identification of the accused, the witness has identified these accused before the Court and therefore, question of identifying them in the video recordings is not relevant.
4. Learned counsel for the petitioners contended that the learned Sessions Judge committed a serious error in disallowing the application. No prejudice would be caused in recalling the witness. He referred to the provisions of section 311 of the Criminal Procedure Code to contend that there are wide powers with the Court to recall the witness in the interest of justice. He relied on a decision of the Apex Court in the case of R.N.Malkani v. State of Maharashtra, (1973) 1 SCC 471 wherein the Apex Court has observed as under :
"23. Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape-record. A contemporaneous tape-record of a relevant conversation is a relevant fact and is admissible under Section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under Section 7 of the Evidence Act. The conversation between Dr. Motwani and the appellant in the present case is relevant to the matter in issue. There is no dispute about the identification of the voices. There is no controversy about any portion of the conversation being erased or mutilated. The appellant was given full opportunity to test the genuineness of the tape recorded conversation. The tape recorded conversation is admissible in evidence."
Reliance was also placed on a decision of Kerala High Court in the case of Suja P. Chacko v. State of Kerala, 1994 Cri.L.J. NOC 292 wherein the learned Judge observed as under:
"The court, while exercising powers under S.311 of the Code or S.165 of the Evidence Act should guard against causing prejudice to the defence or to the prosecution. But that is no reason to pre-empt the right of a party to correct any error or to adduce proper and relevant evidence which through any inadvertence one party would have missed or overlooked at an earlier stage."
Reliance was also placed on a decision of the Apex Court in the case of Rammi v. State of M.P. (1999) 8 SCC 649, wherein the Apex Court observed as under:
"17. There is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in re-examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the Court in accordance with the other provisions. But the Court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination."
Reliance was also placed on a decision of the Apex Court in the case of Godrej Pacific Tech. Ld. v. Computer Joint India Ltd., (2009) 2 SCC (Cri.) 455, wherein while interpreting section 311 of the Criminal Procedure Code, the observations made by the Apex Court in the case reported in AIR (2006) 3 SCC 374 were noted with approval as follows:
"24. In this context, reference may be made to Section 311 of the Code 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."
The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequences, the first part gives purely discretionary authority to a Criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon any one as a witness, or (b) to examine any person present in Court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and 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. This is a supplementary provision enabling, and in certain circumstances imposing on the Court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts.
25. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind."
5. On the other hand, learned counsel for the accused opposed the petition contending that the application has been moved by the prosecution only for filling up the lacuna which cannot be permitted in exercise of powers under section 311 of the Criminal Procedure Code. The learned Sessions Judge has found enough independent material and there is no further necessity of recalling the witness for the purpose indicated by the prosecution.
6. Having thus heard the learned advocates for the parties, I am of the opinion that the learned Judge has committed a serious error in disallowing the application of the petitioners. Firstly, previously, on behalf of the concerned accused 'no objection' was endorsed to such an application being granted. On the basis of such 'no objection', the learned Additional Sessions Judge also passed an order allowing the application of the State. Any further order would amount to reviewing such an order which is not permissible in criminal jurisprudence. However, since such recall was also on the 'no objection' endorsed by the prosecution, I do not propose to decide this petition only on this ground.
7. On the merits of the order, I find that the learned Judge has failed to exercise the jurisdiction vested in him. As observed by the Apex Court in the decisions noted herein-above, the Trial Court is empowered to recall a witness who has already been examined, at any stage and re-examine him if his evidence appears to be essential to the just decision in the case. Thus, while the provision vests discretionary powers in the Court under certain circumstances, it is incumbent upon the court to exercise such powers.
8. In the present case, the prosecution had examined the witness to prove the alleged sting operation during which the accused had allegedly made certain voluntary disclosures. The said accuseds were identified by the witness before the Court. However, the important element of identifying the voices of the accused in the DVD prepared through such sting operation was not completed by the prosecution, for which purpose, the application was moved. In my opinion, such application ought to have been granted which would only further the ends of justice. Accused would have sufficient opportunity to cross-examine the witness, if before the Court he makes any adverse deposition. Simply because the prosecution did not put such a question at the relevant time, in the present case, would not preclude the learned Judge from exercising powers under section 311 of the Criminal Procedure Code particularly looking to the complexity and enormity of the offence alleged.
9. The fact that the witness was a leading Journalist who had made detailed disclosures before the Court would not be a reason enough to deny his recall if on an important aspect his further evidence is necessary. The fact that FSL report regarding voices of the accused is not available would surely be not a ground for not recalling the witness. The reason that the witness cannot be stated to be an expert witness who can depose about the voices in the DVD is a curious reason. The witness had, according to him, carried out the sting operation and recorded the same on audio and video. Identification of the voices and faces by him in such an audio and video would be as one having personal knowledge and not as a expert. Identifying the accused before the Court is vitally different from identifying them in the video recordings.
10. In the result,the petition is allowed. The impugned order dated 11.10.2010 passed by the learned Additional Sessions below application Ex.1457 is set aside. PW 313 shall be recalled and examined by the Court on such date as may be convenient to the Court after putting the State as well as the accused to notice. The petition stands disposed of accordingly.