Ram Chandra Das and ors. Vs. State of Jharkhand and anr. - Court Judgment

S.J. Mukhopadhaya, J.

1. This criminal revision application was preferred by petitioners against the Order dated 14th May, 2003 passed by the learned 1st Additional Sessions Judge, Koderma in Sessions Trial No. 490 of 1999 arising out of Koderma P.S. Case No. 148 of 1999, corresponding to G.R. Case No. 343 of 1999, registered under Sections 498A and 306, I.P.C., whereby and whereunder learned 1st Additional Sessions Judge, Koderma has refused the prayer made on behalf of petitioners under Section 311, Cr.P.C. to recall and re-examine P. W. Nos. 1 to 6 and 9 already examined.

2. Learned Counsel for the petitioners submitted that both the parties have settled their dispute amicably outside the Court and, accordingly, a compromise petition has been filed. The defence intended to recall and re-examine P.W. Nos. 1 to 6 and 9 but it has been illegally rejected. To secure the ends of justice, the Trial Court should have recalled all the material witnesses Nos. 1 to 6 and 9 for their further cross-examination, it was essential for just decision of the case. Reliance was placed on the decisions of this Court in the case of Tetri Devi v. Sukrp Mahto, reported in 2002 (3) JCR 15 ((Jhr), and one unreported decision of this Court dated 3rd June, 2003 passed in Vijoy Ram and Ors. v. State of Jharkhand, Criminal Revision No. 189 of 2003, wherein the Court allowed the prayer made under Section 311, Cr.P.C. to recall certain prosecution witnesses in view of new development that both the parties had entered into compromise and had filed joint compromise petition in the Court below itself.

In the present case, learned Single Judge vide its Order dated 2nd July, 2004 while doubted the correctness of the Orders passed in the aforesaid cases, the offences in this case being non-compound able, referred the case for hearing by a Division Bench.

3. Learned Counsel for the petitioners railed on the decision of the Supreme Court in Mahesh Chand v. State of Rajasthan, reported in AIR 1988 SC 2111, wherein the Apex Court permitted to compound the offence under Section 307, I.P.C. Reliance was also placed on the decision of the Supreme Court in Bharat Singh v. State of M.P., reported in 1990 (Supp). SCC 62. In the said case, parties entered into compromise outside the Court and the injured compensated. Injury caused by accused to victim was not proved to be grievous injury and the conviction was altered from Section 326 to Section 324, I.P.C. and permission was granted to compound the offence. But the submission as made in this case by the Counsel for the petitioners cannot be accepted. The Supreme Court in the case of Ramlal v. State of J & K, reported in I (1999) SLT 317=AIR 1999 SC 895, after referring to Section 320(9) of the Code of Criminal Procedure, rendered the decision in Mahesh Chand (supra) as per incuriam.

In the case of Surendra Nath Mahanty v. State of Orissa, reported in IV (1999) SLT 346=AIR 1999 SC 2181, the Supreme Court observed:

'In our view, submission of the learned Counsel for the respondent requires to accepted. Fro compounding of the offences punishable under the Indian Penal Code, complete scheme is provided under Section 320 of the Code of Criminal Procedure, 1973. Sub-section (1) of Section 320 provides that the offences mentioned in the table provided thereunder can be compounded by the persons mentioned in Column No. 3 of the said table. Further, Sub-section (2) provides that, the offences mentioned in the table could be compounded by the victim with the permission of the Court. As against this, Sub-Section (9) specifically provides that 'no offence shall be compounded except as provided by this Section'. In view of the aforesaid legislative mandate, only the offences which are covered by table 1 or 2 as stated above can be compounded and the rest of the offences punishable under Indian Penal Code could not be compounded.'

4. There is no dispute with the principle of law laid down in various cases that the Court is fully empowered under Section 311, Cr.P.C. to recall any witness at any stage, provided it is considered expedient and in the interest of justice but the witnesses cannot be recalled to achieve result which is not legally permissible. If it is brought to the notice of the Court that certain facts which were necessary but could not be brought to the notice of the prosecution witnesses during cross-examination, inadvertently and the Court feels that further evidence of such person is essential to the just decision of the case, it is obligatory on the part of the Court to summon such witness for re-examination but the Court is required to exercise its discretion properly and judiciously. If it appears to the Court that attempt was made by the defence to win over prosecution witnesses. In such circumstances, rejection of application for recalling prosecution witnesses is proper.

In the case of Mohd. Hussain Umar Kochar v. K.S. Dolip Singhji, AIR 1970 SC 45, the Supreme Court held that the Court has inherent power to recall a witness if it is satisfied that he is prepared to give evidence, which is materially different from what he had given at the trial. But in that case, there should be affidavit of the witnesses to be filed before the Court that their statement given in the Court was wrong and they wanted to give correct statement.

5. From the aforesaid discussions and the decisions of this Court and the Supreme Court, it will be evidence that merely on the ground that the parties have compromised the matter, the Court is not bound to exercise its inherent power to summon or recall and re-examine any witness at any stage under Section 311, Cr.P.C. If there exists justifiable reason to do so in the interest of justice, the Court may summon or recall and re-examine any witness at any stage, but the Court should act with circumspection and exercise power sparingly.

In the case of Arnita Das v. State of Bihar, reported in II (2000) CCR 140 (SC)=IV (2000) SLT 465=AIR 2000 SC 2264, the Supreme Court held that a decision not expressed, not accompanied by reasons and not proceeding on conscious consideration of a issue cannot be deemed to be a law declared to have a binding effect. That which has escaped in the judgment is not ratio decidendi. This is the Rule of a sub silento, in the technical sense when a particular point of law was not consciously determined.

In the case of Tetri Devi v. Sukro Mahto, (supra) and in the case of Vijoy Ram and Ors. v. State of Jharkhand, (supra), learned Single Judge allowed the petitioners of those cases to recall witnesses for further cross-examination in view of compromise reached between the parties outside the Court. In the said cases, no ratio has been laid down and thereby it is not bringing. The decisions in the case of Tetri Devi v. Sukro Mahto, (supra) and in the case of Vijoy and Ors. v. State of Jharkhand, (supra), are not judgment in rem but judgment in personam, between the parties claiming the right.

The decision in the case of B.S. Joshi v. State of Haryana, reported in II (2003) CCR 57 (SC)=I (2003) DMC 524 (SC)=II (2003) SLT 687=2003 (2) East Cr. C 220, is not applicable in this case. That was the case in which a proceeding was initiated by wife under Section 498A against her husband and his relatives. Wife and husband subsequently agreed for mutual divorce. In such circumstances, an application was filed under Section 482, Cr.P.C. by wife for quashing the proceeding initiated by her against the husband and his relatives. In that background, the Supreme Court held that it was the duty of the Court to encourage genuine settlement of matrimonial dispute and for that if necessary to exercise inherent power under Section 482, Cr.P.C. In the said case, no ratio was laid down as to recall and re-examination of prosecution witnesses under Section 311, Cr.P.C. should be allowed or not on the sole ground that the parties have compromised the matter outside the Court.

6. In the present case, no specific plea has been taken by the petitioners as to why they intend to recall and re-examine the prosecution witness Nos. 1 to 6 and 9. A petition under Section 311, Cr.P.C. to recall and re-examine all the material witness Nos. 1 to 6 and 9 has been filed only on the ground that the parties have compromised the matter. On perusal of the deposition of those witnesses, learned Court below found that detailed cross-examination had already been done by the defence on the points for which the defence wanted to recall the witnesses for their cross-examination.

In the aforesaid circumstances, if the Trial Court refused to exercise its power under Section 311, Cr.P.C. and disallowed the defence to fill up the lacuna in its defence and to demolish the prosecution case by further cross-examining the witnesses on the points on which detailed cross-examination had already been made, it required no interference.

7. There being no merit, this criminal revision application is dismissed.

Lakshman Uraon, J.

8. I agree.