Sama Ram Vs. State of Rajasthan and anr. - Court Judgment

Excerpt:
criminal procedure code, 1973 - section 482--rejection of application put under section 311 cr.p.c. on the ground that documents required were not collected during investigation and that petitioner has no locus stand! to file application under section 311 cr.p.c. when defence evidence was closed--held, private party can conduct trial through his counsel under the direction of public prosecutor--closure of defence evidence cannot be a ground for rejecting application under section 311 cr.p.c.--power under section 311 cr.p.c. can be utilized before the conclusion of trial--for lapses on the part of investigating officer, petitioner cannot be allowed denial of justice--impugned order of trial court quashed and set aside.;petition allowed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - ' 12. first of all, i would like to deal with the point of locus standi of the petitioner in filing the application. moreover, the first part, as the language of the relevant provisions clearly indicates, is independent of the second part which in addition, authorities the private counsel to submit written arguments with the permission of the court after the defence is closed. 20. now, i would like to deal with the point regarding delay caused in filing the application. similarly before the apex court in case of mohanlal shamji (2) (supra), application under section 311 was filed after the examination of evidence or prosecution as well as of defence and closure of arguments of defence but before arguments on behalf of the prosecution. ..counsel seek only for their clinet's success; 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. counsel seek only for their clients' success, but the judge must watch that justice triumphs. in the instant case, though it was not thought proper to file an application by the learned public prosecutor, this court under its revisional as well as the inherent power direct that the additional public prosecutor to get summoned the doctors alongwith relevant documents, which the complainant wanted to produce. sessions judge as well as the app have not taken any interest in discharge of their duties. it was the duty of the sessions judge to issue summons to the investigating officer if he failed to remain present at the time of trial of the case. if there is failure on part of any witness to remain present, it is the duty of the court to take appropriate action including issuance of bailable/non-baliable warrants as the case may be. ' 38. in view of the above decision, the court would like to emphasis upon the trial court that 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.joshi, j.1. this criminal miscellaneous petition under section 482 cr.p.c. has been filed against the order of the learned additional sessions judge (fast track). sirohi in sessions case no. 63/2001 dated 12th october, 2001, whereby the application of the petitioner complainant under section 311 cr.p.c. was rejected.2. the facts of the case in brief are that a first information report no. 26 dated 13.3.98 was lodged at p.s. anadara, district sirohi alleging that the accused-non petitioner no. 2 chhaganlal inflicted injury by spade on the head of the petitioner. thereafter, the case was registered, investigated and committed to the court of the learned sessions judge, sirohi under sections 307, 325, 324 & 323 ipc. the case was then transferred to the learned additional sessions judge and charge was framed against the accused under section 307 ipc. the accused pleaded not guilty to the charges and claimed trial. the evidence from the prosecution side was summoned and it was closed on 19th september, 2001 and the case was fixed on 29th september, 2001. on that day, the statement of the accused was recorded and he expressed not to lead evidence in defence and therefore, the case was fixed for final arguments on 3rd october, 2001. on 3rd october, 2001, an application under section 311 cr.p.c. was filed by the petitioner same ram and a copy of the same was supplied both to the counsel for the defence and to the additional public prosecutor. the case was then adjourned to 4.10.2001. on that day, 'vakalatnama' was filed on behalf of sama ram and the additional public prosecutor recorded his no objection on it. reply to the application was filed by the counsel for the defence. the learned counsel for the accused opposed the application filed by the petitioner sama ram and the learned additional public prosecutor requested the court to pass appropriate order according to law. on 12.10.2001 the arguments on the application were heard and it was rejected by the court.3. aggrieved by the said order this petition under section 482 cr.p.c. has been filed by the complainant-injured sama ram.4. it was argued by the learned counsel for the petitioner that the evidence and the documents, which the petitioner wanted to produce are relevant and essential for the just decision of the case. the record pertains to hospital record regarding his stay, treatment in the hospital and the evidence of the doctor, who admitted and given treatments to him. it was further argued that the application has been filed at the earliest. the evidence was closed on 19th september, 2001 and as soon as the complainant- petitioner came to know about it on 3rd october, 2001, the day on which the case was fixed for hearing arguments, he filed the application and therefore, it cannot be said that the application has been filed with ulterior motive. he has further argued that the learned trial court did not consider whether the evidence, which he wanted to be produced was essential for the just decision of the case or not therefore, the said order is liable to be set aside and the petition may be accepted, witnesses with documents may be allowed to be produce on behalf of the prosecution.5. it was argued further on behalf of the non-petitioner no. 2 it may be argued, that no revision is maintainable against the order and, if the court comes to this conclusion, this petition under section 482 cr.p.c. is maintainable to secure the ends of the justice and it may be treated likewise. he has further argued that it cannot be said that the petitioner has no locus-standi to file the said application as has been held by the learned trial court.6. the learned public prosecutor did not oppose the petition. however, the learned counsel for the non-petitioner no. 2 opposed it vehemently.7. it was argued by the learned counsel for the non-petitioner no. 2 (accused) that the petitioner has no locus-standi to file this petition ; that the application was delayed; that the evidence of the prosecution was closed by the prosecution itself and not by court; and that the evidence recorded was not collected during the course of investigation and hence not filed with the charge-sheet and therefore, it cannot be allowed to be produced at this stage. he further argued that the application filed by the complainant is not maintainable as the case has now been fixed for final arguments in the trial court.8. the learned counsel for the petitioner has placed reliance on the following decisions in support of his arguments:-(1) umed singh and ors. v. devi singh and ors. (1)(2) mohanlal shamji soni v. union of india and anr. (2)(3) rikhab chand v. the state of rajasthan (3)(4) sugani devi v. state of raj. and ors. (3)9. perused the judgment of the learned trial court, the precedents cited by the learned counsel for the petitioner and the relevant provisions of the code of criminal procedure.10. the learned trial court had rejected the application on the ground that the documents were not collected during investigation; and were also not filed alongwith charge sheet. they were also not filed at the time of committal and recording of the evidence of p.w. 8 sama ram on 18th september, 2001 during trial. it is relevant to mention here that the documents and the evidence, which the petitioner wanted to produce are reports of c.t. scan, bed head ticket and discharge ticket issued by the doctor who admitted and examined him. (it is further relevant to mentioned here that these documents were referred in the evidence of p.w. 5 dr. surendra kumar jain and an objection was raised about its exhibition and admissibility in evidence and the learned trial court left the matter in this regard to be decided at the final stage of hearing. these facts were brought to the notice of this court by the counsel for the petitioner and were not controverted by the opposite side.) the other grounds for rejection of the application were regarding the locus-standi of the petitioner, the delay in its production after closure of the evidence of the defence.11. section 301 and 311 of cr.p.c. read as under:-'301. appearance by public prosecutor.-(1) the public prosecutor or assistant public prosecutor in charge of a case may appear and plead without any written authority before any court in which that case is under inquiry, trial or appeal. (2) if in any such case any private person instructs a pleader to prosecute any person in any court, the public prosecutor or assistant public prosecutor in charge of the case shall conduct the prosecution and the pleader so instructed shall not therein under the directions of the public prosecutor or assistant public prosecutor, and may, with the permission of the court, submit written arguments after the evidence is closed in the case.section 311 '311. power to summon material witness, or examine person pre-sent.-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-examined 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.'12. first of all, i would like to deal with the point of locus standi of the petitioner in filing the application.13. it has been held in umed singh and ors. v. devi singh and ors. (supra) as under:-.'i have given my careful consideration to the rival contentions. so faras the objection of the learned counsel for the accused-non-petition-ers that this revision at the instance of the complainants should notbe entertained, i am of the opinion that looking to the peculiarcircumstances of this case and the importance of the evidencesought to be produced, i need not refuse to the entertain the revisionat the instance of the complainants even though the prosecutionagency has not come forward.'14. it was further held by the learned single judge as under:-'i am not oblivious of the fact that this is an interlocutory order and a revision against such an order may not lie but it does appear to me that this is a fit case where powers under section 482 cr.p.c. must be invoked.'15. in manohar lal v. vinesh anand and ors. (5), the hon'ble apex court has held as under:-'to pursue an offender in the event of commission of an offence is to sub-serve a social need-society cannot affort to have a criminal escape his liability, since that would bring about a state of social pollution, which is neither desired nor warranted and this is irrespective of the concept of locus-the doctrine of locus-standi is totally foreign to criminal jurisprudence.'16. the learned trial court has placed much reliance on the judgment given in in re, rakhan ojha (6), wherein it has been held:'a plain reading of the provision (section 301(2)] makes it abundantly clear that if in a case which is in charge of a public prosecutor or assistant public prosecutor, a private person engages a lawyer then, notwithstanding such engagement.. ..he can only submit written argument-and that too with the permission of the court....he has no right of audience..,.'17. in the opinion of the court with utmost respect to the division bench, which decided the case, it is submitted that in doing so, the court did not lay emphasis on the first part of section 301(2) and did not specifically consider whether such private counsel will have 'right of audience' if so directed, by the prosecution in charge of the case. incidentally, so far as the first part is concerned, it is purely a matter between the prosecutor and the private counsel, the court having no active role to play therein. moreover, the first part, as the language of the relevant provisions clearly indicates, is independent of the second part which in addition, authorities the private counsel to submit written arguments with the permission of the court after the defence is closed. the court also did not specifically consider want exactly the expression shall act therein' connotes. the word 'act' is highly significant and the division bench while disagreeing with the view of the learned single judge as referred to above, ought to have considered the true import of the word 'act' particularly when it has been held by different other high courts that the word includes examining or cross-examining witnesses or addressing the court. it is, therefore, humbly submitted, that the division bench decision in rakhan ojha, in re as regards to the interpretation of section 301(2) lacks pragmatism and does not lay down the correct law. permission to a person to replace the public prosecutor by his private counsel to conduct the prosecution cannot be granted on the ground that the public prosecutor would be influenced by a person related to the accused and that the public prosecutor would be more interested in supporting the cross-case. however, no permission of the court is necessary by a private party to conduct a trial through his counsel under the direction of the public prosecutor.18. in view of the above, when section 301(2) authorises a privately engaged pleader to act in the case under the direction of the public prosecutor, he may do everything in the case provided that it is done under the control and direction of the public prosecutor, the word 'conduct' in section 301(2) conveys the idea of leading and guiding; and the person who conducts the prosecution determines all important questions of policy involved in the course of the trial and the attitude to be adopted by the prosecution towards material objections raised or demands made by the accused with respect to the evidence. so long as the public prosecutor leads and guides, in the above sense, the pleader for the private party, no objection to such a procedure could be entertained. but if in a particular case it happens that the very conduct of the prosecution is completely left in the hands of such a pleader, then the provisions of the code must be held to have been violated.19. in the present case, the learned additional public prosecutor, who conducted the case, had no objection in filing 'vakalatnama' on the production of the application and before this court also, no objection was raised by the learned public prosecutor for the state. therefore, it can safely be inferred that the conduct of the prosecution is completely illegal and not left in the hands of the pleaders engaged by the petitioner-complainant and the provisions of the code of criminal procedure must have held not to be violated. therefore, the rejection of the application of the petitioner on this ground is not tenable.20. now, i would like to deal with the point regarding delay caused in filing the application.21. in the considered opinion of the court as it appears from the certified copies of the order-sheets, it cannot be said that the application by the petitioner was filed with great delay. an application under section 311 of the code can be filed at any stage before the pronouncement of the judgment. under section 311 the court is bound to summon and examine evidence, which appears to it to be essential for the just decision of the case. in umed singh's case (1) (supra) also the evidence of the prosecution was closed; statements of the accused were recorded and the defence closed its evidence even then the application was held to be entertainable. similarly before the apex court in case of mohanlal shamji (2) (supra), application under section 311 was filed after the examination of evidence or prosecution as well as of defence and closure of arguments of defence but before arguments on behalf of the prosecution.22. in case of rajendra prasad v. narcotic cell through its officer-in-charge (7), application under section 311 of the code was filed when the defence highlighted the laches of prosecution during trial arguments.23. it appears in the case before hand that the witnesses to whom the petitioner wanted to produce were summoned on 23rd july, 2001 and evidence of p.w. 4 dr. r.c. mehta and p.w. 5 dr. surendra was recorded on 21st august, 2001. sama ram was examined as p.w. 8 on 18th september, 2001. on 19th september, 2001, though dr. s. bhasin was present, but was not examined. the prosecution closed its evidence on 19.9.2000. on that day, the petitioner sama ram was not present and the case was fixed for recording the statement of the accused on 29th september, 2001. on the said date the statements of the accused were recorded and as he did not want to lead evidence in defence, the case was fixed for hearing final arguments on 3rd october, 2001. on that day, the present application was filed. merely because, an application was filed after the closure of the evidence of the defence cannot be a ground for rejection of the application, the learned trial court has relied on an endorsement made on the list of witnesses, in which it has been mentioned that the witnesses have been left out by the prosecution on 19th september, 2001, though in the proceedings of the court, this fact has not been mentioned, but even then there is no reason to disbelieve the fact recorded by the learned trial court and presence of dr. s. bhasin is also proved by signature of the doctor on the court proceedings of the said day i.e. 19th september, 2001. the ground of delay is also therefore not tenable. it cannot be said that the prosecution wants to reopen the case.24. in mohanlal shamji's case (2) (supra), section 540 was found in chapter xlvi of the old code of 1898 under the heading 'miscellaneous'. but the present corresponding section 311 of the new code is found among other sections in chapter xxiv under the heading general provisions as to enquiries and trials' section 311 is an almost verbatim reproduction of section 540 of the old code except for the insertion of the words 'to be' before the word 'essential' occurring in the old section. this section is manifestly in two parts. whereas the word 'used' in the first part is 'may' the word used in the second part is 'shall'. in consequence, the first part which, it permissive gives purely discretionary authority to the criminal code and enables it/at any state of enquiry, trial or other proceedings' under the code to act in one of the three ways, namely.(1) to summon any person as a witness or (2) to examine any person in attendance, though not summoned as a witness, or(3) to recall and re-examine any person already examined.25. the second part which is mandatory imposes an obligation on the court.(1) to summon and examine, or ,(2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.26. in jamatraj kewalji govani v. state of maharashtra (8), it has been held that section 540 of the old code (section 311 of the new code) and section 165 of the evidence act may be said to be complementary to each other and these two sections between them confer jurisdiction on the judge to act in aid of justice.27. it was further held in the above case as under:-'it is difficult to limit the power under our code to cases which involve something arising ex-improvise which no human ingenuity could foresee, in the course of the defence. our code does not make this a condition of the exercise of the power and it is not right to embark on judicial legislation. cases that go far are of course not quite right. indeed they could be decided on fact because it can always be seen whether the new matter is strictly necessary for a just decision and not intended to give an unfair advantage to one of the rival sides..........it would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the court provided the just decision of the case demands it. in other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. if the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction.'28. in epps v. s. (9), it has been held by lumptin, j. as under: -'....it is only the right but the duty of the presiding judge to call the attention of the witness to it, whether it makes for or against the prosecution; his aim being neither to punish the innocent nor screen the guilty, but to administer the law correctly.......counsel seek only for their clinet's success; but the judge must watch that justice triumphs.'29. in this view of the matter, it should be borne in mind that the aid of section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or b the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties.30. in rameshwar dayal v. state of u.p. (10), it has been held as follows:-'it is true that under section 540 of the criminal procedure code the high court had got every wide powers to examine any witness it likes for the just decision of the case, but this power has to be exercised sparingly and only when the ends of justice so demand. the higher the power the more careful should be its exercise....the words, 'just decision of the case' would become meaningless and without any significance if a decision is to be arrived at without a sense of justice and fair play.'31. 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.32. it has been held in rajendra prasad v. narcotic cell through its officer-in-charge, delhi (supra), as under:-'the contention that the court cannot exercise power of re-summoning any witness if once that power was exercised, cannot be countenanced as a legal proposition, nor can the power be whittled down merely on the ground that prosecution discovered laches only when the defence highlighted them during final arguments. the power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just decision.'33. thus, the power under this section can be exercised even during the final arguments, but before the conclusion of the trial i.e. pronouncement of the order or judgment of the case. the hon'ble apex court has considered the meaning of 'lacuna' in rajendra prasad's case (supra) and held that:'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 by saying that the court could not till the lacuna in the prosecution case.' a lacuna in 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 proved. a corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a court cannot fill up.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 an over sight 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.'34. the powers under section 311 cr.p.c. can be exercised at any stage if the evidence of a witness appears to be essential to just decision of the case and it is duty of the court to summon or re-call examining any such person. the judgment of the apex court in raj deo sharma v. state of bihar (11), also do not curtail the power of court. it was further held in the above case that even if the prosecution evidence is closed in compliance with the directions contained in the main judgment, it is still open to the prosecution to invoke the powers of the court under section 311 of the code.35. thus, the learned trial court was not competent to reject the application filed by the petitioner. the learned trial court has not considered this aspect of the matter whether the evidence orally or documentary was essential for the just decision of the case or not, which was mandatory to exercise the powers under section 311 cr.p.c. as has been held by this court in rikhab chand (3) & sugani devi's case (4) (supra) and by the hon'ble supreme court.36. in the considered opinion of the court, the evidence of the doctors, though not collected during the course of investigation was essential for the just decision of the case. due to lapses on behalf of the investigating officer, the petitioner cannot be allowed denial of justice. the courts are meant to do justice and not for only disposing the case and to declare who won the case. counsel seek only for their clients' success, but the judge must watch that justice triumphs. all the three doctors and their reports, which the petitioner wanted to produce are relevant and essential for the just decision of the case. in that view of the matter also, the production of oral and documentary evidence, which the petitioner wanted to produce is allowed to produced and it is further mentioned that the case be proceeded by the counsel for the petitioner-complainant but under the guidance and control of the learned additional public prosecutor of the court. in the instant case, though it was not thought proper to file an application by the learned public prosecutor, this court under its revisional as well as the inherent power direct that the additional public prosecutor to get summoned the doctors alongwith relevant documents, which the complainant wanted to produce.37. before parting with the judgment, it is relevant to mention here that it has been held in shailendra kumar v. state of bihar and ors. (12), as under:-'in a murder trial it is sordid and repulsive matter that without informing the police station officer-in-charge, the matter are proceeded by the court and by the app and tried to be disposed of as if the prosecution has not led any evidence. from the facts, it appears that accused wants to frustrate the prosecution by unjustified means and it appears that by one way or the other the addl. sessions judge as well as the app have not taken any interest in discharge of their duties. it was the duty of the sessions judge to issue summons to the investigating officer if he failed to remain present at the time of trial of the case. the presence of investigating officer at the time of trial is must. it is his duty to keep the witnesses present. if there is failure on part of any witness to remain present, it is the duty of the court to take appropriate action including issuance of bailable/non-baliable warrants as the case may be. it should be understood that prosecution cannot be frustrated by such methods and victims of the crime cannot be left in lurch.even though the order closing prosecution, evidence was approved by the high court, it was competent for the court to allow application filed by state under section 311 for examination of witnesses.'38. in view of the above decision, the court would like to emphasis upon the trial court that 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.39. accordingly, this petition is liable to be accepted and is hereby accepted. the order of the learned trial court dated 12.10.2001 is hereby quashed and set aside. the parties are directed to appear before the learned trial court on 12th february, 2002.40. the accused will be examined under section 313 cr.p.c. in view of the evidenceso produced and he will also be at liberty to produce the evidence in his defence. theaccused will further be at liberty to re-summon or re-examine the medical evidencefor cross-examination of the same and to rebut the evidence so produced. the copiesof those documents will be supplied to the accused in advance before the doctorsappear in the court for statement. the doctors are allowed to produce the relevantdocuments in the case.