Manoj Jha Vs. State of Jharkhand and anr. - Court Judgment

Excerpt:
- constitution of india article 215: [m. karpaga vinayagam, cjm, .y.eqbal & amareshwar sahay, r.k. merathia, narendra nath tiwari, jj] contempt proceedings review powers of high court held, article 215 of the constitution vests the high court with all the powers of court of record including the power to punish for its contempt. this special jurisdiction is inherent in a court of record from the very nature of the court itself. the said special power is not subject to the procedural law either of the criminal procedure code or the contempt of courts act. the high court can deal with the matter summarily and can adopt its own procedure. however, if the high court initiates the proceeding as a court of record, principle of natural justice must be applied and the contemner should be given sufficient opportunity to know the accusation and to defend himself. in the instant case, the contemner was served with the notice to show cause. he was well aware of the accusation. he also admitted his guilt. in view thereof, contention of the contemner lawyer that he was not heard on merit of the contempt application and the impugned judgment of punishing petitioner in contempt of court is violative of principles of natural justice, is not tenable. article 215: contempt proceedings review of conviction held, it is the solemn duty of the bench and bar to maintain and uphold the majesty, authority and dignity of the courts for the sustenance and progress of democracy in our country particularly at the juncture when there are number of instances of outside attempt to disintegrate and destroy the democratic set up of our country. such conduct of a member of the bar brings the authority of the court and the administration of justice into disrespect, erodes and undermine the foundation of the judiciary by shaking faith and confidence of the people in the ability of the courts to deliver free and fair justice, it is a deliberate attempt to insult the high court and denigrate the authority and solemnity and court strongly deprecate such attempt made with biased attitude. such indiscriminate allegations against judges, who are the members of the bench, cannot be a ground for review of the impugned judgment. punishment of prohibiting appearance of contemner/lawyer before high court as well as courts under its jurisdiction is based on his repeated convictions for contempt in the past is not violative of article 19(g) of the constitution. no interference in exercise of review jurisdiction is warranted. - after birth of daughter petitioner started ill-treating her and she was not allowed even the good food. the learned counsel further pointed out that criminal courts have got no inherent power to recall its own order like section 482 of the code with which the high court is vested for inherent jurisdiction and, therefore, the learned court below was not justified to recall its own order of closure of the case and re-open the same to facilitate the applicant-opposite party no. in this connection it has been held that it is well settled that jurisdiction conferred under section 311 of the code cannot be used to fill up the lacuna in the prosecution case but this power conferred under section 311 can only be exercised if the court, while hearing the case, deems fit and proper to examine some witnesses in the ends of justice and to appreciate the prosecution case and to clarify any doubt in his mind and such power cannot be exercised for aid of prosecution. after all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.orderhari shankar prasad, j. 1. this is an application under section 482 of the code of criminal procedure for quashing the order dated 10.1.2002 passed in t.r. no. 299/2001. 2. the facts giving rise to this application are that the opposite party no. 2 filed a criminal case no. 38/98 in the court of chief judicial magistrate, godda under section 125 of the code of criminal procedure (hereinafter referred to as 'the code') stating therein that she was married with the petitioner on. 22.2.1996, according to hindu rites and customs, and out of their matrimonial relationship a daughter was born. after birth of daughter petitioner started ill-treating her and she was not allowed even the good food. parents of the petitioner also used to ill-treat her and they demanded a sum of rs. 25,000/-, a colour t.v., a motor-cycle etc. and lastly she was driven out in the month of april 98. she claimed that petitioner has got sufficient landed property and as such she may be paid rs. 1000/- per month for maintenance of. her child and herself. the opposite party no. 2, who was applicant in t.r no. 299/2001, was asked to lead her evidence and on 5.2.2001 the opposite party no. 2 filed an application requesting to close her case and on her prayer the learned court below closed the evidence of opposite party no. 2. and this petitioner was asked to produce witnesses and adduce evidence. by the impugned order dated 5.2.2001 the learned court below, after lapsed of 11 months, passed order recalling the order and closure of the case of the opposite party no. 2-applicant. the petitioner was leading his, evidence and, therefore, there was no occasion for the learned court below to reopen the case of opposite party no. 2. 3. learned counsel appearing for the petitioner, submitted that the applicant, who is the opposite party no. 2 here in this revision application, had herself filed a petition for closing the case and in pursuance of that petition her case was closed and, therefore, there was no occasion for this opposite party no. 2-applicant to file a fresh petition for permitting her to give some more evidence as by now she has got the concocted documents and wanted to utilize those concocted documents to fill-up the lacuna of the case. the learned counsel further pointed out that criminal courts have got no inherent power to recall its own order like section 482 of the code with which the high court is vested for inherent jurisdiction and, therefore, the learned court below was not justified to recall its own order of closure of the case and re-open the same to facilitate the applicant-opposite party no. 2 to lead further evidence and to fill-up the lacuna. 4. on the other hand, learned counsel appearing for the opposite party no. 2, submitted that the applicant-opposite party no. 3, was so fair in her conduct that when she had no other witness to produce in the court she filed a petition for closing the case, but when she got some documents and other materials in connection with solemnization of her marriage after some time of the case, she filed a petition under section 311 of the code for allowing her to give further evidence as by the time when case was closed she was not in a position to get those documents and with the lapse of time she has now got those documents and for the ends of justice and fair trial, she has filed a petition under section 311 of the code and requested the learned court for such an opportunity and learned court, by his impugned order, allowed opportunity and, therefore, there is no illegality in the impugned order. the learned counsel further pointed out that it is true that criminal courts have got no power to recall its own orders but section 311 of the code does not under that purview and court has been empowered under section 311 of the code for such a contingency. 5. in course of hearing submissions of both the parties, both sides relied upon case laws and in this connection referred to 1991 (1) scc 271, 1999 scc (cr) 1062 and 1984 bbcj 657. 6. in 1984 bbcj 657 a principle has been laid down that witnesses can be recalled, re-examined after closure of the case and even after case is fixed for delivery of judgment, in the ends of justice and not to fill up the lacuna of the case, the power under section 311 of the code cannot be exercised for aid of prosecution. in this connection it has been held that it is well settled that jurisdiction conferred under section 311 of the code cannot be used to fill up the lacuna in the prosecution case but this power conferred under section 311 can only be exercised if the court, while hearing the case, deems fit and proper to examine some witnesses in the ends of justice and to appreciate the prosecution case and to clarify any doubt in his mind and such power cannot be exercised for aid of prosecution. in this case arguments were heard and date was fixed for delivery of judgment and both sides had filed their written arguments and thereafter a petition was filed under section 311 of the code for examination of some witnesses and that was disallowed after setting aside the order on the ground that in order to out do the argument of the defence the court seeks to examine two material witnesses and this is impermissible. in 1991 (1) scc 21 an obligation is cast on the court to summon or recall and examine any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. in 1991 scc (cr) 1062 it has been held that witnesses can be recalled or re-summoned though power under this section cannot be exercised to fill up the lacuna in prosecution case. oversight or mistake during conducting of case cannot be understood as a lacuna and so can be corrected. the lacuna is the inherent weakness or a latent wedge in the matrix of prosecution case. in this case, while disposing of the application, the hon'ble supreme court tried to explain the lacuna in the following words :-- '7. it is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under section 311 of the code or under section 165 of the evidence act, 1872 by saying that the court could not 'fill the lacuna in the prosecution case'. a lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. the adage 'to err is human' is the recognition of the possibility of making mistakes to which humans are prone. a corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a court cannot fill up. 8. lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. the advantage of it should normally go to the accused in the trial of the case, but oversight in the management of the prosecution cannot be treated as irreparable lacuna. no party in a trial can be foreclosed from correcting errors. if proper evidence was not adduced or a relevant material was not, brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. after all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.' 7. now in the light of case laws discussed above, it is manifest clear that power conferred under section 311 of the code is to be exercised with caution and in exercise of power conferred under section 311 of the code a court can recall, summon or examine any witness for just decision of a case but not for filling up the lacuna of the case or in aid of prosecution. in the instant case complainant-opposite party no. 2 filed a petition for closure of the case and in pursuance of prayer case was closed but some time thereafter a petition on her behalf was filed for permitting her to prove some paper and lead evidence as by that time she has been able to get some papers and other materials relating to solemnization of her marriage with the petitioner, which she could not find out at the time when she filed petition for closure of the case and in my opinion, this will not amount to fill up the lacuna of the case but this piece of evidence court wants to be adduced for proper adjudication of the matter and in the ends of justice and, therefore, in the facts and circumstances of the case, i do not find any merit in this application, which is accordingly dismissed. however, the learned court below is directed to proceed in the matter in accordance with law and will afford reasonable opportunity to the defence also to rebut the matter. 8. with the aforesaid observation and direction, this application is dismissed.

Judgment:
ORDER

Hari Shankar Prasad, J.

1. This is an application under Section 482 of the Code of Criminal Procedure for quashing the order dated 10.1.2002 passed in T.R. No. 299/2001.

2. The facts giving rise to this application are that the opposite party No. 2 filed a Criminal Case No. 38/98 in the Court of Chief Judicial Magistrate, Godda under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') stating therein that she was married with the petitioner on. 22.2.1996, according to Hindu rites and customs, and out of their matrimonial relationship a daughter was born. After birth of daughter petitioner started ill-treating her and she was not allowed even the good food. Parents of the petitioner also used to ill-treat her and they demanded a sum of Rs. 25,000/-, a colour T.V., a motor-cycle etc. and lastly she was driven out in the month of April 98. She claimed that petitioner has got sufficient landed property and as such she may be paid Rs. 1000/- per month for maintenance of. her child and herself. The opposite party No. 2, who was applicant in T.R No. 299/2001, was asked to lead her evidence and on 5.2.2001 the opposite party No. 2 filed an application requesting to close her case and on her prayer the learned Court below closed the evidence of opposite party No. 2. and this petitioner was asked to produce witnesses and adduce evidence. By the impugned order dated 5.2.2001 the learned Court below, after lapsed of 11 months, passed order recalling the order and closure of the case of the opposite party No. 2-applicant. The petitioner was leading his, evidence and, therefore, there was no occasion for the learned Court below to reopen the case of opposite party No. 2.

3. Learned counsel appearing for the petitioner, submitted that the applicant, who is the opposite party No. 2 here in this revision application, had herself filed a petition for closing the case and in pursuance of that petition her case was closed and, therefore, there was no occasion for this opposite party No. 2-applicant to file a fresh petition for permitting her to give some more evidence as by now she has got the concocted documents and wanted to utilize those concocted documents to fill-up the lacuna of the case. The learned counsel further pointed out that criminal courts have got no inherent power to recall its own order like Section 482 of the Code with which the High Court is vested for inherent jurisdiction and, therefore, the learned Court below was not justified to recall its own order of closure of the case and re-open the same to facilitate the applicant-opposite party No. 2 to lead further evidence and to fill-up the lacuna.

4. On the other hand, learned counsel appearing for the opposite party No. 2, submitted that the applicant-opposite party No. 3, was so fair in her conduct that when she had no other witness to produce in the Court she filed a petition for closing the case, but when she got some documents and other materials in connection with solemnization of her marriage after some time of the case, she filed a petition under Section 311 of the Code for allowing her to give further evidence as by the time when case was closed she was not in a position to get those documents and with the lapse of time she has now got those documents and for the ends of justice and fair trial, she has filed a petition under Section 311 of the Code and requested the learned Court for such an opportunity and learned Court, by his impugned order, allowed opportunity and, therefore, there is no illegality in the impugned order. The learned counsel further pointed out that it is true that criminal Courts have got no power to recall its own orders but Section 311 of the Code does not under that purview and Court has been empowered under Section 311 of the Code for such a contingency.

5. In course of hearing submissions of both the parties, both sides relied upon case laws and in this Connection referred to 1991 (1) SCC 271, 1999 SCC (Cr) 1062 and 1984 BBCJ 657.

6. In 1984 BBCJ 657 a principle has been laid down that witnesses can be recalled, re-examined after closure of the case and even after case is fixed for delivery of judgment, in the ends of Justice and not to fill up the lacuna of the case, the power under Section 311 of the Code cannot be exercised for aid of prosecution. In this connection it has been held that it is well settled that jurisdiction conferred under Section 311 of the Code cannot be used to fill up the lacuna in the prosecution case but this power conferred under Section 311 can only be exercised if the Court, while hearing the case, deems fit and proper to examine some witnesses in the ends of justice and to appreciate the prosecution case and to clarify any doubt in his mind and such power cannot be exercised for aid of prosecution. In this case arguments were heard and date was fixed for delivery of judgment and both sides had filed their written arguments and thereafter a petition was filed under Section 311 of the Code for examination of some witnesses and that was disallowed after setting aside the order on the ground that in order to out do the argument of the defence the Court seeks to examine two material witnesses and this is impermissible. In 1991 (1) SCC 21 an obligation is cast on the Court to summon or recall and examine any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. In 1991 SCC (Cr) 1062 it has been held that witnesses can be recalled or re-summoned though power under this section cannot be exercised to fill up the lacuna in prosecution case. Oversight or mistake during conducting of case cannot be understood as a lacuna and so can be corrected. The lacuna is the inherent weakness or a latent wedge in the matrix of prosecution case. In this case, while disposing of the application, the Hon'ble Supreme Court tried to explain the lacuna in the following words :--

'7. It is a common experience in criminal Courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act, 1872 by saying that the Court could not 'fill the lacuna in the prosecution case'. A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage 'to err is human' is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a Court cannot fill up.

8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not, brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. After all, function of the Criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.'

7. Now in the light of case laws discussed above, it is manifest clear that power conferred under Section 311 of the Code is to be exercised with caution and in exercise of power conferred under Section 311 of the Code a Court can recall, summon or examine any witness for just decision of a case but not for filling up the lacuna of the case or in aid of prosecution. In the instant case complainant-opposite party No. 2 filed a petition for closure of the case and in pursuance of prayer case was closed but some time thereafter a petition on her behalf was filed for permitting her to prove some paper and lead evidence as by that time she has been able to get some papers and other materials relating to solemnization of her marriage with the petitioner, which she could not find out at the time when she filed petition for closure of the case and in my opinion, this will not amount to fill up the lacuna of the case but this piece of evidence Court wants to be adduced for proper adjudication of the matter and in the ends of justice and, therefore, in the facts and circumstances of the case, I do not find any merit in this application, which is accordingly dismissed. However, the learned Court below is directed to proceed in the matter in accordance with law and will afford reasonable opportunity to the defence also to rebut the matter.

8. With the aforesaid observation and direction, this application is dismissed.