Recalling of whiteness for Cross Examination in Criminal Cases.
“In both the cases cited by the learned counsel for the accused petitioner, the witnesses were summoned/recalled at the instance of the prosecution for examination, re-examination and re-cross examination for the purpose of coming to a just decision.
In the case in hand, it is just the reverse inasmuch as the re-cross examination of some prosecution witnesses has been sought by the defence as for them there was omission and leches on the part of the defence in cross-examining some prosecution witnesses to take its decision by the Court (in their favour). It is well discernible that although the accused petitioner has not said expressly that the re-cross examination of some prosecution witnesses is required to fill up the lacunae in its defence, it has actually intended to do so. The power vested with the Court under Section 540 under old Cr.P.C., which is equivalent to Section 311 of the new Cr.P.C., is not intended to be used for the purpose of giving opportunity to the defence to recall and re-cross examine at its instance. Such power is given to the Court only when the prosecution calls upon the trial Court to re-call the witnesses already examined and discharged after cross-examination or not summoned and examined for establishing the prosecution case.”
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM & ARUNACHAL PRADESH)
CRL REVN. P NO.494 / 2010
Altaf Hussain @ Alta Hussain,
S/o Late Basir Uddin,
R/o Vill- Noonnagor,
Police Station- Katigarh,
Mr. MH Rajborbhuiyan.
Ms. R. Chetri,
Mr. L. Das
The State of Assam
Mr. BB Gogoi, Addl. P.P, Assam
THE HON’BLE MR. JUSTICE P. K. MUSAHARY
Date of hearing : 15-03-2011
Date of Order : 20 -04-2011
O R D E R
Heard Mr. MH Rajbjorbhuyan, learned counsel for the petitioner and also heard Mr. BB Gogoi, learned Addl. P.P., Assam for the opp. Party.
2. Orders dated 29-11-2010 and 03-12-2010 passed by the learned Sessions Judge, Cachar, Silchar in Sessions Case No.150/2009 are under challenge in this Criminal Revision
Petition. How the aforesaid two orders were passed, a brief story of the prosecution needs to be stated. 3. An FIR was lodged against the present petitioner to the effect that on 13-10-2009 at around 8.00 P.M., the petitioner and other accused persons kidnapped the informant’s minor daughter who could not be traced out in spite of search made. The police registered the case as Katigoarh P.S. Case No. 65/09 under Sections 366(A)/376 IPC and after investigation charge sheet was laid against the petitioner under Section 366(A)/376 IPC. The case being committed to the learned Court of Sessions, Silchar, was registered as Sessions Case No.150/09, and in the meantime, victim girl, got married to some body at Hailakandi.
4. The learned Sessions Judge framed charge under the said sectionsagainst the present accused-petitioner and the trial commenced. The prosecution examined the victim girl Rasma Begum and the informant Samsul Haque Laskar as PW-1 & PW-2 respectively. They were duly cross-examined by the defence and were discharged on 16-07-2010. The Investigating Officer and the Medical Officer were also examined and cross-examined on 07-10-2010 and 29-11-2010 respectively and were discharged. On 07-10-2010, the accused petitioner filed an application, which was registered as Application No. 12/6, making a prayer before the learned trial Court for recalling PW-1 & PW-2 for further cross-examination. The learned Sessions Judge heard the parties and passed the impugned order dated 29-11-2010 rejecting the aforesaid prayer and fixed 03-12-2010 for hearing on arguments. On 03-12-2010, the accused persons remained absent without steps. However, later on, the learned counsel for the defence filed Petition No.65/1 belatedly showing the cause of absence of
the accused-petitioner and fixed another date for hearing on 08-12-2010 directing the petitioner’s counsel to produce the accused persons. 5. Mr. Rajborbhuyan, learned counsel for the accused-petitioner submits that the learned trial Court mechanically and without application of judicial mind, refused to exercise power under Section 540 of the Code of Criminal Procedure, 1898 and Section 165 of the Indian Evidence Act, 1872 and rejected the prayer for recalling PW-1 & PW-2. Under the aforesaid provisions of law, according to him, the Court has been conferred with wide jurisdiction and there is no limitation on such power of the Court as the exigencies of justice require as held in Jamatraj Kewalji Govani Vs. State of Maharashtra, reported in AIR 1968 SC 178(1). Further, as submitted by him, witnesses can be re-called or re-summoned under Section 311 of the Code of Criminal Procedure, 1973 although such power cannot be exercised to fill up lacuna in prosecution case as held in Rajendra Prasad Vs. Narcotic Cell, reported in (1999) 6 SCC 110. 6. This Criminal Revision Petition is accompanied by a copy of the aforesaid Application No.12/6, which has been marked as annxure-3. The reason for recalling the prosecution witnesses for further cross-examination have been narrated as under: “1. That Sir prosecution examined witnesses namely Rasma Begum (P.W-1) prosecutix and Samsul Hoque Laskar (P.W-2) father of prosecutix and cross-examined and discharged on 16-07-2010. But due to mistake of fact some questions could not be asked which were necessary for the defence to apprising to true fact of the case before the court as a result accused petitioner prejudiced and there has been a question of defeating the fair justice.
2. That Sir there was oral evidence of prosecutix (P.W.1) and her father (P.W.2) regarding occurrence of incident, rape kidnapped
and recovery. But no-cross examination made on these important point due to mistake as a result accused petitioner has been deprived from his right which he is entitled to in accordance with law to prove his innocence and to disprove the charge levelled against him. 3. That Sir Prosecution story depends upon the prosecution witnesses and the case of the defence depends upon the evidence of the prosecution witnesses, mainly available in cross. And it is admitted by the accused petitioners that due to certain laches or mistake failed certain questions of the prosecution witnesses through his learned lawyer and prays to allow the accused petitioner to put these questions to the prosecution witnesses as that would not in any way affect the prosecution case, rather would help the court to come to a just decision of case.” 7. From the aforesaid petition for recalling the prosecution witnesses for further cross-examination, position has been made clear that the prosecution witnesses were produced and examined by the prosecution. They were also cross-examined but the defence could not ask some questions, which were necessary to establish its case causing prejudice to the accused-petitioner. The petitioner admitted that due to certain laches and mistake on the part of his counsel, some important questions could not be put to the said prosecution witnesses and it has deprived him of his right to prove his innocence and to disprove the charge levelled against him. It is, therefore, clear that the defence was given full opportunity to cross-examine the aforesaid prosecution witnesses and they were discharged. 8. Under Section 138 of the Indian Evidence Act, 1872, the order of examination of witnesses has been prescribed. The aforesaid Section is reproduced hereunder:
“S-138. Order of examination- Witnesses shall be first examined-in-chief, then (if the adverse party so desires)
cross-examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.” 9. As per the scheme of the Evidence Act, after a party examines his witness in-chief his opponent has right to cross-examine him. The party, who calls the witness, may also re-examine to explain any part of his evidence given during cross-examination which is capable of being construed unfavourable to his own side and when a witness is re-examined, the opp. Party has right to cross-examine him again, if so desired. 10. Here is a case where the prosecution did not indulge in any re-examination of the prosecution witnesses. Had there been re-examination of the said prosecution witnesses, the accused-petitioner would naturally have the right to cross-examine them. Since such a situation/occasion has not arisen, the accused-petitioner had to make application for recalling the said prosecution witnesses for re-cross-examination. This is the crux of the matter in the present petition. This question has to be answered behind the background that the learned trial Court provided the full opportunity to the defence to cross-examine the prosecution witnesses but his counsel allegedly committed some lapses and mistake in cross-examining the prosecution witnesses on certain necessary aspect to disprove the charges.
11. In case the recalling of some prosecution witnesses for re-cross examination is allowed, it is necessary to examine whether there is any chance of filling up the lacuna in conducting the defence by the accused-petitioner and whether it is necessary for the purpose of arriving at a just decision to meet the ends of justice.
12. The provisions under Section 540 of the old Cr.P.C. is equivalent to Section 311 of the new Cr.P.C., which provides for power to summon material witness, or examine person present before the trial Court. In Jamatraj Kewalji’s case (supra), it has been mandated that the trial Court has the power to summon any witness at any stage of the trial for just decision of a case. In the said case, the prosecution failed to examine an important witness who seized certain articles in execution of search warrant in connection smuggling of watches. The learned trial Court in the said case held that it is not a case in which the prosecution was trying to fill up a gap in the prosecution. The Apex Court, in such circumstances, observed that it cannot be said that the Court had exceeded its jurisdiction in acting under the second paragraph of Section 540 of the Code of Criminal Procedure. There is, in my considered view, no similar facts and circumstances to apply the ratio of decision found in the aforesaid referred case. Now coming to other referred case, Rajendra Prasad (supra), it has to be noted that it was a case where the accused was facing trial along with other persons for offences under Sections 21, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The trial, in the said case, almost came to an end when the prosecution and the defence closed their evidence and the prosecution made application for summoning two of the witnesses, who were already examined for the purpose of proving certain documents for prosecution. They were further examined and the evidence was once again closed and the case was posted for hearing arguments. After the arguments were heard, the Public Prosecutor again moved an application seeking permission
to examine PW-21 (S.I. of Police) and two other persons, which was stoutly opposed by the accused’s counsel but the trial Court allowed the said application in exercise of its power under Section 311 of the Code of Criminal Procedure and summonses were issued to the witnesses. The learned trial Court while allowing the prosecution to recall PW-21, recorded its reason that cross-examination of PW-21 by the defence counsel was deferred but thereafter he was never summoned for cross-examination and there was negligence on the part of the Public Prosecutor as he closed the evidence twice without verifying whether cross-examination of all the witnesses has been concluded or not. The learned trial Court, in the said case, therefore, allowed the application for recalling PW-21 for cross-examination in the interest of justice. 13. Following the decision in Mohanlal Shamji Soni Vs. Union of India, 1991 Supp (1) SCC 271 and Jamatraj (supra), the Apex Court came to a conclusion as under:- “ We cannot therefore accept the contention of the appellant as a legal proposition that the Court cannot exercise power of re-summoning 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 re-summoning certain witnesses cannot therefore be spurned down or frowned at.
14. In both the cases cited by the learned counsel for the accused petitioner, the witnesses were summoned/recalled at the instance of the prosecution for examination, re-examination and re-cross examination for the purpose of coming to a just decision.
In the case in hand, it is just the reverse inasmuch as the re-cross examination of some prosecution witnesses has been sought by the defence as for them there was omission and leches on the part of the defence in cross-examining some prosecution witnesses to take its decision by the Court (in their favour). It is well discernible that although the accused petitioner has not said expressly that the re-cross examination of some prosecution witnesses is required to fill up the lacunae in its defence, it has actually intended to do so. The power vested with the Court under Section 540 under old Cr.P.C., which is equivalent to Section 311 of the new Cr.P.C., is not intended to be used for the purpose of giving opportunity to the defence to recall and re-cross examine at its instance. Such power is given to the Court only when the prosecution calls upon the trial Court to re-call the witnesses already examined and discharged after cross-examination or not summoned and examined for establishing the prosecution case. Once such witnesses are produced for re-examination at the instance of the prosecution, the defence has the right to re-examine such prosecution witnesses, no such situation arose in the present case to allow the accused petitioner’s prayer for recalling the aforesaid prosecution witnesses. 15. Therefore, I find no infirmity or illegality in the impugned orders dated 29-11-2010 and 03-12-2010 passed by the learned Sessions Judge, Cachar, Silchar in Sessions Case No.150/2009. The accused- petitioner having failed to establish his case, this petition must fail. It is accordingly dismissed upholding the impugned orders. JUDGE