Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1307 OF 2014
[Arising out of Special Leave Petition (Crl.) No.8395 of 2012]
Mannan Sk & Ors. ... Appellants
Vs.
State of West Bengal & Anr. … Respondents
J U D G M E N T
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. In this appeal order dated 11/5/2012 passed by the
High Court of Calcutta is under challenge. By the impugned
order the High Court reversed the trial court’s order which
had rejected the application filed by the prosecution under
Section 311 of the Code of Criminal Procedure, 1973 (for
short, ‘the code’) to recall the Investigating Officer.
Page 2
3 A petty altercation over a tape recorder resulted in a
major incident in which bombs were hurled at Rupchand Sk –
the father of PW8-Nurul Islam. Incident occurred on
13/12/1992. Rupchand Sk suffered grievous injuries. He
was taken to a local hospital. From there he was shifted to
Berhampore hospital where he breathed his last. On
14/12/1992 a complaint was lodged by the son of deceased
Rupchand Sk - PW8-Nurul Islam with Raghunathpur Police
Station on the basis of which FIR was registered. In the FIR
PW8-Nurul Islam named nine persons. Initially the case was
registered under Sections 447, 326 read with Section 34 of
the Penal Code and Sections 3 and 4 of the Explosives
Substances Act. After the death of Rupchand Sk, Section
304 of the Penal Code was added.
4. After the charges were framed the trial began. PW15-SI Dayal Mukherjee, the Investigating Officer, was examined
on 18/2/2011. He was re-examined on 17/5/2011. He stated
in his evidence that he had recorded deceased Rupchand
Sk’s statement at the scene of offence. In the cross-2
Page 3
examination he stated that he had recorded one page
statement of deceased Rupchand Sk. This statement was
not brought on record.
5. One month thereafter on 16/6/2011 the prosecution
moved an application for recalling PW15-SI Dayal Mukherjee
because the prosecution wanted to bring on record
statement of deceased Rupchand Sk which it had
inadvertently omitted to do. Needless to say that it is the
prosecution case that after death of Rupchand Sk the said
statement became his dying declaration.
6. The trial court vide order dated 22/6/2011 rejected the
said application. The trial court observed that the case was
at the stage of argument and no explanation was given by
the prosecution as to why the statement of deceased
Rupchand Sk was not brought on record by the Investigating
Officer. The trial court noted that PW15-SI Dayal Mukherjee
was examined on 18/2/2011 and re-examined on 17/5/2011.
According to the trial court if the prosecution is allowed to
recall PW15-SI Dayal Mukherjee that would enable the
3
Page 4
prosecution to fill-up the lacuna. The trial court relied on
State of Rajasthan v. Doulat Ram 1 and Mohan Lal
Shamji Soni v. Union of India 2 . The trial court observed
that re-examination of PW15- SI Dayal Mukherjee is not
essential for the just decision of the case.
7. Being aggrieved by this order the complainant filed an
application under Section 401 read with Section 482 of the
Code in the High Court. The High Court reversed the trial
court’s order. The High Court observed that non-exhibiting
of the statement of deceased Rupchand Sk was mistake of
the prosecution and no advantage can flow from the said
mistake to the accused. The High Court further observed
that existence of the statement was known to the accused
and, hence, no prejudice would be caused to them. The said
order is challenged in this appeal by the appellants-accused.
8. We have heard learned counsel for the parties at some
length. We have perused their written submissions. Mr.
Pijush K. Roy, learned counsel for the appellants submitted
1 AIR 1980 SC 1314
2 AIR 1991 SC 1346
4
Page 5
that the incident took place 22 years back. The statements
of witnesses were recorded under Section 161 of the Code
within a week from the date of incident. The Investigating
Officer was examined and cross-examined. The case is set
for final arguments and, therefore, it would be unjust and
unfair to recall the Investigating Officer. His recall would
cause serious prejudice to the appellants. This is clearly an
attempt to fill-up the lacuna which should not be allowed.
Counsel further submitted that PW15-SI Dayal Mukherjee has
retired from the service in the year 2010 and he is presently
about 68 years of age. He might have forgotten the entire
episode. It will be easy for the complainant to tutor him.
Counsel submitted that Section 311 of the Code is not meant
for putting the accused in a disadvantageous position. This
would lead to miscarriage of justice. In support of his
submissions counsel relied on Chandran v. State of
Kerala 3 , State of Rajasthan v. Daulat Ram, Mohan Lal
Shamji Soni v. Union of India & Ors, Mishrilal and ors.
3 (1985) Cr L.J. 1288
5
Page 6
v. State of M.P. and ors 4 , Mir Mohammad Omar and
ors. v. State of West Bengal 5 .
9. Mr. Anip Sachthey, learned counsel appearing for the
State of West Bengal on the other hand submitted that the
application was made just one month after the re-examination of the Investigating Officer. Therefore, there is
no delay in recalling him. Statement of deceased Rupchand
Sk was not exhibited due to inadvertence and hence for just
decision of the case it is essential to recall the Investigating
Officer. Counsel submitted that this would not amount to
filling-up the lacuna. In support of his submissions counsel
relied on P. Sanjeeva Rao v. State of Andhra Pradesh 6 ,
Hanuman Ram v. State of Rajasthan & Ors 7 ., Rajendra
Prasad v. Narcotic Cell 8 and Mohanlal Shamji Soni
10. The aim of every court is to discover truth. Section 311
of the Code is one of many such provisions of the Code
which strengthen the arms of a court in its effort to ferret out
4 2005(10) SCC 701
5 1989 (4) SCC 436
6 2012(7) SCC 56
7 2008(15) SCC 652
8 1999(6) SCC 110
6
Page 7
the truth by procedure sanctioned by law. It is couched in
very wide terms. It empowers the court at any stage of any
inquiry, trial or other proceedings under the Code to
summon any person as a witness or examine any person in
attendance, though not summoned as witness or recall and
re-examine already examined witness. The second part of
the Section uses the word ‘shall’. It says that the court shall
summon and examine or recall or re-examine any such
person if his evidence appears to it to be essential to the just
decision of the case. The words ‘essential to the just
decision of the case’ are the key words. The court must
form an opinion that for the just decision of the case recall or
re-examination of the witness is necessary. Since the power
is wide it’s exercise has to be done with circumspection. It is
trite that wider the power greater is the responsibility on the
courts which exercise it. The exercise of this power cannot
be untrammeled and arbitrary but must be only guided by
the object of arriving at a just decision of the case. It should
not cause prejudice to the accused. It should not permit the
prosecution to fill-up the lacuna. Whether recall of a witness
7
Page 8
is for filling-up of a lacuna or it is for just decision of a case
depends on facts and circumstances of each case. In all
cases it is likely to be argued that the prosecution is trying to
fill-up a lacuna because the line of demarcation is thin. It is
for the court to consider all the circumstances and decide
whether the prayer for recall is genuine.
11. Rather than referring to all the judgments which are
cited before us, we would concentrate on Mohanlal Soni
which takes into consideration relevant judgments on the
scope of Section 311 and lays down the principles.
Mohanlal Soni is followed in all subsequent judgments. In
Mohanlal Soni this Court was considered the scope of
Section 540 of the Code of Criminal Procedure, 1898 ( the
old code) which is similar to Section 311 of the Code. This
Court observed that it is a cardinal rule in the law of
evidence that the best available evidence should be brought
before the court to prove a fact or the points in issue. The
relevant observations of this Court are as under:
8
Page 9
“… … …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 whereunder 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 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.”
This Court further observed as under:
“… … … Though Section 540 (Section 311 of the
new Code) is, 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
they should be exercised, that power is
circumscribed by the principle that underlines
Section 540, namely, evidence to be obtained
should appear to the court essential to a just
decision of the case by getting at the truth by all
lawful means. Therefore, it should be borne in
mind that the aid of the 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
9
Page 10
exercising the power under this section and it
should not be used for filling up the lacuna left by
the prosecution or by 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.”
12. While dealing with Section 311 of the Code in
Rajendra Prasad this Court explained what is lacuna in the
prosecution as under:
“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 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.”
10
Page 11
13. Reference must also be made to the observations of
this Court in Zahira Habibulla H. Sheikh and anr. v.
State of Gujarat and ors 9 where this Court described the
scope of Section 311 of the Code as under:
“Object of the Section is to enable the court to
arrive at the truth irrespective of the fact that
the prosecution or the defence has failed to
produce some evidence which is necessary for a
just and proper disposal of the case. The power
is exercised and the evidence is examined
neither to help the prosecution nor the defence,
if the court feels that there is necessity to act in
terms of Section 311 but only to subserve the
cause of justice and public interest. It is done
with an object of getting the evidence in aid of a
just decision and to uphold the truth.”
14. If we view the present case in light of the above
judgments, we will have to sustain the High Court’s order.
PW15-SI Dayal Mukherjee stated in the court that he had
recorded the statement of deceased Rupchand Sk. Thus,
this fact was known to the defence. He was cross-examined
by the defence. Inadvertently, the said statement was not
brought on record through PW15-SI Dayal Mukherjee.
Rupchand Sk died after the said statement was recorded.
9 (2004) 4 SCC 158
11
Page 12
The said statement, therefore, became very vital to the
prosecution. It is obvious that the prosecution wants to treat
it as a dying declaration. Undoubtedly, therefore, it is an
essential material to the just decision of the case. Though,
the fact of the recording of this statement is deposed to by
PW15-SI Dayal Mukherjee, since due to oversight it was not
brought on record, application was made under Section 311
of the Code praying for recall of PW15-SI Dayal Mukherjee.
This cannot be termed as an inherent weakness or a latent
wedge in the matrix of the prosecution case. No material is
tried to be brought on record surreptitiously to fill-up the
lacuna. Since the accused knew that such a statement was
recorded by PW15-SI Dayal Mukherjee, no prejudice can be
said to have been caused to the accused, who will
undoubtedly get a chance to cross-examine PW15-SI Dayal
Mukherjee.
15. It is true that PW15-SI Dayal Mukherjee was once
recalled but that does not matter. It does not prevent his
further recall. Section 311 of the Code does not put any
12
Page 13
such limitation on the court. He can still be recalled if his
evidence appears to the court to be essential to the just
decision of the case. In this connection we must revisit
Rajendra Prasad where this Court has clarified that the
court can exercise power of re-summoning any witness
even if it has exercised the said power earlier. Relevant
observations of this Court run as under:
“We cannot therefore accept the contention of the
appellant as a legal proposition that the court
cannot exercise power of resummoning any
witness if once that power was exercised, nor can
the power be whittled down merely on the ground
that the 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. The steps which the trial court
permitted in this case for resummoning certain
witnesses cannot therefore be spurned down or
frowned at.”
16. It was strenuously contended that the incident had
taken place on 13/12/1992 and, therefore, the application
made after a gap of 22 years must be rejected. This
submission must be rejected because PW15-SI Dayal
13
Page 14
Mukherjee was re-examined on 17/5/2011 and application
for his recall was made just one month thereafter. It is true
that the incident is dated 13/12/1992 and the trial
commenced in 2001. These are systemic delays which are
indeed distressing. But once the trial began and the
Investigating Officer was re-examined on 17/5/2011, the
prosecution made an application for recall just one month
thereafter. There was no delay at that stage. The
submissions that PW15-SI Dayal Mukherjee has grown old;
that his memory must not be serving him right; that he can
be tutored are conjectural in nature. In any case, the
accused have a right to cross-examine PW15-SI Dayal
Mukherjee. The accused are, therefore, not placed in a
disadvantageous position.
17. We must now turn to the judgments cited by the
appellants. In State of Rajasthan v. Daulat Ram this
Court was dealing with an appeal from an order of acquittal.
The prosecution had not proved beyond reasonable doubt
that the opium seized was the opium which was sent to the
14
Page 15
public analyst. At the trial the prosecution had made an
application under Section 540 of the old Code (Section 311
of the Code) for summoning three persons under whose
custody the seized samples were kept. It was rejected by
the trial court. An application was made before the High
Court for additional evidence which was later withdrawn.
This Court commented on the vacillating approach of the
State and observed that the prosecution should not be
allowed to fill-up the lacunae left at the trial, at the appellate
or revisional stage. This case turns on its own facts and has
no application to the present case.
18. Mishrilal, on which reliance is placed by the
appellants, has also no application to this case. In Mishrilal
a witness was examined and cross-examined in a murder
trial on the same day. In Juvenile Court where some of the
juveniles were tried, he gave evidence subsequently. He
stated that he was not aware as to who attacked him. He
was recalled by the Sessions Court and confronted with the
statement given by him before the Juvenile Court on the
15
Page 16
basis of which the accused were acquitted. This Court did
not approve of the procedure adopted by the Sessions Court.
This Court observed that a witness could be confronted only
with a previous statement made by him. The day on which
he was first examined in the Sessions Court, there was no
such previous statement. This Court observed that the
witness must have given some other version before Juvenile
Court for some extraneous reasons. He should not have
been given an opportunity at a later stage to completely
efface the evidence already given by him under oath. It is
the wrong procedure and attempt to efface evidence which
persuaded this Court to observe that once the witness was
examined in-chief and cross-examined fully such witness
should not have been recalled and re-examined to deny the
evidence which he had already given in the court even
though he had given an inconsistent statement before any
other court subsequently. It is pertinent to note that this
Court did not discuss Section 311 of the Code.
16
Page 17
19. Mir Mohd. Omar has no application to this case as it
deals with a totally different fact situation. In that case this
Court has not considered Section 311 at all.
20. In the ultimate analysis we must record that the
impugned order merits no interference. We must, however,
clarify that oversight of the prosecution is not appreciated by
us. But cause of justice must not be allowed to suffer
because of the oversight of the prosecution. We also make
it clear that whether deceased Rupchand Sk’s statement
recorded by PW15-SI Dayal Mukherjee is a dying declaration
or not, what is its evidentiary value are questions on which
we have not expressed any opinion. If any observation of
ours directly or indirectly touches upon this aspect, we
make it clear that it is not our final opinion. The trial court
seized of the case shall deal with it independently.
21. In the result the appeal is dismissed. Needless to say
that the interim orders passed by this Court on 15/10/2012,
03/05/2013 and 27/01/2014 staying the impugned order
dated 11/05/2012 passed by the Calcutta High Court in CRR
17
Page 18
No. 2385 of 2011 are vacated. The trial court shall proceed
with the case and ensure that it is concluded at the earliest.
………………………….J.
[Ranjana Prakash Desai]
………………………….J.
[N.V. Ramana]
New Delhi
July 3, 2014
18
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1307 OF 2014
[Arising out of Special Leave Petition (Crl.) No.8395 of 2012]
Mannan Sk & Ors. ... Appellants
Vs.
State of West Bengal & Anr. … Respondents
J U D G M E N T
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. In this appeal order dated 11/5/2012 passed by the
High Court of Calcutta is under challenge. By the impugned
order the High Court reversed the trial court’s order which
had rejected the application filed by the prosecution under
Section 311 of the Code of Criminal Procedure, 1973 (for
short, ‘the code’) to recall the Investigating Officer.
Page 2
3 A petty altercation over a tape recorder resulted in a
major incident in which bombs were hurled at Rupchand Sk –
the father of PW8-Nurul Islam. Incident occurred on
13/12/1992. Rupchand Sk suffered grievous injuries. He
was taken to a local hospital. From there he was shifted to
Berhampore hospital where he breathed his last. On
14/12/1992 a complaint was lodged by the son of deceased
Rupchand Sk - PW8-Nurul Islam with Raghunathpur Police
Station on the basis of which FIR was registered. In the FIR
PW8-Nurul Islam named nine persons. Initially the case was
registered under Sections 447, 326 read with Section 34 of
the Penal Code and Sections 3 and 4 of the Explosives
Substances Act. After the death of Rupchand Sk, Section
304 of the Penal Code was added.
4. After the charges were framed the trial began. PW15-SI Dayal Mukherjee, the Investigating Officer, was examined
on 18/2/2011. He was re-examined on 17/5/2011. He stated
in his evidence that he had recorded deceased Rupchand
Sk’s statement at the scene of offence. In the cross-2
Page 3
examination he stated that he had recorded one page
statement of deceased Rupchand Sk. This statement was
not brought on record.
5. One month thereafter on 16/6/2011 the prosecution
moved an application for recalling PW15-SI Dayal Mukherjee
because the prosecution wanted to bring on record
statement of deceased Rupchand Sk which it had
inadvertently omitted to do. Needless to say that it is the
prosecution case that after death of Rupchand Sk the said
statement became his dying declaration.
6. The trial court vide order dated 22/6/2011 rejected the
said application. The trial court observed that the case was
at the stage of argument and no explanation was given by
the prosecution as to why the statement of deceased
Rupchand Sk was not brought on record by the Investigating
Officer. The trial court noted that PW15-SI Dayal Mukherjee
was examined on 18/2/2011 and re-examined on 17/5/2011.
According to the trial court if the prosecution is allowed to
recall PW15-SI Dayal Mukherjee that would enable the
3
Page 4
prosecution to fill-up the lacuna. The trial court relied on
State of Rajasthan v. Doulat Ram 1 and Mohan Lal
Shamji Soni v. Union of India 2 . The trial court observed
that re-examination of PW15- SI Dayal Mukherjee is not
essential for the just decision of the case.
7. Being aggrieved by this order the complainant filed an
application under Section 401 read with Section 482 of the
Code in the High Court. The High Court reversed the trial
court’s order. The High Court observed that non-exhibiting
of the statement of deceased Rupchand Sk was mistake of
the prosecution and no advantage can flow from the said
mistake to the accused. The High Court further observed
that existence of the statement was known to the accused
and, hence, no prejudice would be caused to them. The said
order is challenged in this appeal by the appellants-accused.
8. We have heard learned counsel for the parties at some
length. We have perused their written submissions. Mr.
Pijush K. Roy, learned counsel for the appellants submitted
1 AIR 1980 SC 1314
2 AIR 1991 SC 1346
4
Page 5
that the incident took place 22 years back. The statements
of witnesses were recorded under Section 161 of the Code
within a week from the date of incident. The Investigating
Officer was examined and cross-examined. The case is set
for final arguments and, therefore, it would be unjust and
unfair to recall the Investigating Officer. His recall would
cause serious prejudice to the appellants. This is clearly an
attempt to fill-up the lacuna which should not be allowed.
Counsel further submitted that PW15-SI Dayal Mukherjee has
retired from the service in the year 2010 and he is presently
about 68 years of age. He might have forgotten the entire
episode. It will be easy for the complainant to tutor him.
Counsel submitted that Section 311 of the Code is not meant
for putting the accused in a disadvantageous position. This
would lead to miscarriage of justice. In support of his
submissions counsel relied on Chandran v. State of
Kerala 3 , State of Rajasthan v. Daulat Ram, Mohan Lal
Shamji Soni v. Union of India & Ors, Mishrilal and ors.
3 (1985) Cr L.J. 1288
5
Page 6
v. State of M.P. and ors 4 , Mir Mohammad Omar and
ors. v. State of West Bengal 5 .
9. Mr. Anip Sachthey, learned counsel appearing for the
State of West Bengal on the other hand submitted that the
application was made just one month after the re-examination of the Investigating Officer. Therefore, there is
no delay in recalling him. Statement of deceased Rupchand
Sk was not exhibited due to inadvertence and hence for just
decision of the case it is essential to recall the Investigating
Officer. Counsel submitted that this would not amount to
filling-up the lacuna. In support of his submissions counsel
relied on P. Sanjeeva Rao v. State of Andhra Pradesh 6 ,
Hanuman Ram v. State of Rajasthan & Ors 7 ., Rajendra
Prasad v. Narcotic Cell 8 and Mohanlal Shamji Soni
10. The aim of every court is to discover truth. Section 311
of the Code is one of many such provisions of the Code
which strengthen the arms of a court in its effort to ferret out
4 2005(10) SCC 701
5 1989 (4) SCC 436
6 2012(7) SCC 56
7 2008(15) SCC 652
8 1999(6) SCC 110
6
Page 7
the truth by procedure sanctioned by law. It is couched in
very wide terms. It empowers the court at any stage of any
inquiry, trial or other proceedings under the Code to
summon any person as a witness or examine any person in
attendance, though not summoned as witness or recall and
re-examine already examined witness. The second part of
the Section uses the word ‘shall’. It says that the court shall
summon and examine or recall or re-examine any such
person if his evidence appears to it to be essential to the just
decision of the case. The words ‘essential to the just
decision of the case’ are the key words. The court must
form an opinion that for the just decision of the case recall or
re-examination of the witness is necessary. Since the power
is wide it’s exercise has to be done with circumspection. It is
trite that wider the power greater is the responsibility on the
courts which exercise it. The exercise of this power cannot
be untrammeled and arbitrary but must be only guided by
the object of arriving at a just decision of the case. It should
not cause prejudice to the accused. It should not permit the
prosecution to fill-up the lacuna. Whether recall of a witness
7
Page 8
is for filling-up of a lacuna or it is for just decision of a case
depends on facts and circumstances of each case. In all
cases it is likely to be argued that the prosecution is trying to
fill-up a lacuna because the line of demarcation is thin. It is
for the court to consider all the circumstances and decide
whether the prayer for recall is genuine.
11. Rather than referring to all the judgments which are
cited before us, we would concentrate on Mohanlal Soni
which takes into consideration relevant judgments on the
scope of Section 311 and lays down the principles.
Mohanlal Soni is followed in all subsequent judgments. In
Mohanlal Soni this Court was considered the scope of
Section 540 of the Code of Criminal Procedure, 1898 ( the
old code) which is similar to Section 311 of the Code. This
Court observed that it is a cardinal rule in the law of
evidence that the best available evidence should be brought
before the court to prove a fact or the points in issue. The
relevant observations of this Court are as under:
8
Page 9
“… … …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 whereunder 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 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.”
This Court further observed as under:
“… … … Though Section 540 (Section 311 of the
new Code) is, 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
they should be exercised, that power is
circumscribed by the principle that underlines
Section 540, namely, evidence to be obtained
should appear to the court essential to a just
decision of the case by getting at the truth by all
lawful means. Therefore, it should be borne in
mind that the aid of the 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
9
Page 10
exercising the power under this section and it
should not be used for filling up the lacuna left by
the prosecution or by 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.”
12. While dealing with Section 311 of the Code in
Rajendra Prasad this Court explained what is lacuna in the
prosecution as under:
“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 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.”
10
Page 11
13. Reference must also be made to the observations of
this Court in Zahira Habibulla H. Sheikh and anr. v.
State of Gujarat and ors 9 where this Court described the
scope of Section 311 of the Code as under:
“Object of the Section is to enable the court to
arrive at the truth irrespective of the fact that
the prosecution or the defence has failed to
produce some evidence which is necessary for a
just and proper disposal of the case. The power
is exercised and the evidence is examined
neither to help the prosecution nor the defence,
if the court feels that there is necessity to act in
terms of Section 311 but only to subserve the
cause of justice and public interest. It is done
with an object of getting the evidence in aid of a
just decision and to uphold the truth.”
14. If we view the present case in light of the above
judgments, we will have to sustain the High Court’s order.
PW15-SI Dayal Mukherjee stated in the court that he had
recorded the statement of deceased Rupchand Sk. Thus,
this fact was known to the defence. He was cross-examined
by the defence. Inadvertently, the said statement was not
brought on record through PW15-SI Dayal Mukherjee.
Rupchand Sk died after the said statement was recorded.
9 (2004) 4 SCC 158
11
Page 12
The said statement, therefore, became very vital to the
prosecution. It is obvious that the prosecution wants to treat
it as a dying declaration. Undoubtedly, therefore, it is an
essential material to the just decision of the case. Though,
the fact of the recording of this statement is deposed to by
PW15-SI Dayal Mukherjee, since due to oversight it was not
brought on record, application was made under Section 311
of the Code praying for recall of PW15-SI Dayal Mukherjee.
This cannot be termed as an inherent weakness or a latent
wedge in the matrix of the prosecution case. No material is
tried to be brought on record surreptitiously to fill-up the
lacuna. Since the accused knew that such a statement was
recorded by PW15-SI Dayal Mukherjee, no prejudice can be
said to have been caused to the accused, who will
undoubtedly get a chance to cross-examine PW15-SI Dayal
Mukherjee.
15. It is true that PW15-SI Dayal Mukherjee was once
recalled but that does not matter. It does not prevent his
further recall. Section 311 of the Code does not put any
12
Page 13
such limitation on the court. He can still be recalled if his
evidence appears to the court to be essential to the just
decision of the case. In this connection we must revisit
Rajendra Prasad where this Court has clarified that the
court can exercise power of re-summoning any witness
even if it has exercised the said power earlier. Relevant
observations of this Court run as under:
“We cannot therefore accept the contention of the
appellant as a legal proposition that the court
cannot exercise power of resummoning any
witness if once that power was exercised, nor can
the power be whittled down merely on the ground
that the 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. The steps which the trial court
permitted in this case for resummoning certain
witnesses cannot therefore be spurned down or
frowned at.”
16. It was strenuously contended that the incident had
taken place on 13/12/1992 and, therefore, the application
made after a gap of 22 years must be rejected. This
submission must be rejected because PW15-SI Dayal
13
Page 14
Mukherjee was re-examined on 17/5/2011 and application
for his recall was made just one month thereafter. It is true
that the incident is dated 13/12/1992 and the trial
commenced in 2001. These are systemic delays which are
indeed distressing. But once the trial began and the
Investigating Officer was re-examined on 17/5/2011, the
prosecution made an application for recall just one month
thereafter. There was no delay at that stage. The
submissions that PW15-SI Dayal Mukherjee has grown old;
that his memory must not be serving him right; that he can
be tutored are conjectural in nature. In any case, the
accused have a right to cross-examine PW15-SI Dayal
Mukherjee. The accused are, therefore, not placed in a
disadvantageous position.
17. We must now turn to the judgments cited by the
appellants. In State of Rajasthan v. Daulat Ram this
Court was dealing with an appeal from an order of acquittal.
The prosecution had not proved beyond reasonable doubt
that the opium seized was the opium which was sent to the
14
Page 15
public analyst. At the trial the prosecution had made an
application under Section 540 of the old Code (Section 311
of the Code) for summoning three persons under whose
custody the seized samples were kept. It was rejected by
the trial court. An application was made before the High
Court for additional evidence which was later withdrawn.
This Court commented on the vacillating approach of the
State and observed that the prosecution should not be
allowed to fill-up the lacunae left at the trial, at the appellate
or revisional stage. This case turns on its own facts and has
no application to the present case.
18. Mishrilal, on which reliance is placed by the
appellants, has also no application to this case. In Mishrilal
a witness was examined and cross-examined in a murder
trial on the same day. In Juvenile Court where some of the
juveniles were tried, he gave evidence subsequently. He
stated that he was not aware as to who attacked him. He
was recalled by the Sessions Court and confronted with the
statement given by him before the Juvenile Court on the
15
Page 16
basis of which the accused were acquitted. This Court did
not approve of the procedure adopted by the Sessions Court.
This Court observed that a witness could be confronted only
with a previous statement made by him. The day on which
he was first examined in the Sessions Court, there was no
such previous statement. This Court observed that the
witness must have given some other version before Juvenile
Court for some extraneous reasons. He should not have
been given an opportunity at a later stage to completely
efface the evidence already given by him under oath. It is
the wrong procedure and attempt to efface evidence which
persuaded this Court to observe that once the witness was
examined in-chief and cross-examined fully such witness
should not have been recalled and re-examined to deny the
evidence which he had already given in the court even
though he had given an inconsistent statement before any
other court subsequently. It is pertinent to note that this
Court did not discuss Section 311 of the Code.
16
Page 17
19. Mir Mohd. Omar has no application to this case as it
deals with a totally different fact situation. In that case this
Court has not considered Section 311 at all.
20. In the ultimate analysis we must record that the
impugned order merits no interference. We must, however,
clarify that oversight of the prosecution is not appreciated by
us. But cause of justice must not be allowed to suffer
because of the oversight of the prosecution. We also make
it clear that whether deceased Rupchand Sk’s statement
recorded by PW15-SI Dayal Mukherjee is a dying declaration
or not, what is its evidentiary value are questions on which
we have not expressed any opinion. If any observation of
ours directly or indirectly touches upon this aspect, we
make it clear that it is not our final opinion. The trial court
seized of the case shall deal with it independently.
21. In the result the appeal is dismissed. Needless to say
that the interim orders passed by this Court on 15/10/2012,
03/05/2013 and 27/01/2014 staying the impugned order
dated 11/05/2012 passed by the Calcutta High Court in CRR
17
Page 18
No. 2385 of 2011 are vacated. The trial court shall proceed
with the case and ensure that it is concluded at the earliest.
………………………….J.
[Ranjana Prakash Desai]
………………………….J.
[N.V. Ramana]
New Delhi
July 3, 2014
18
