Criminal Writ Petition No.2725 of 2009

7th April, 2010

Petitioner Counsel: Mr. G. S. GODBOLE,Mr. P. M. ARJUNWADKAR
Respondent Counsel: Mr. UMESH R. MANKAPURE,Mr. D. R. MORE

Cases Cited:
Godrej Pacific Tech. Limited Vs. Computer Joint India Limited, 2009 ALL MR (Cri) 948 (S.C.)=(2008)11 SCC 108 [Para 5,15]
Rajendra Prasad Vs. Narcotic Cell, (1999) SCC (Cri) 1062 [Para 5,13]
G.G.A. Naidu Vs. State of Maharashtra, 2002 ALL MR (Cri) 1465 [Para 5]
Mir Mohd. Omar Vs. State of West Bengal, (1989)4 SCC 436 [Para 6,11]
Jamatraj Kewalji Govani Vs. State of Maharashtra, AIR 1968 SC 178 [Para 6,8,10,16]
Rama Paswan Vs. State of Jharkhand, 2007 ALL MR (Cri) 1732 (S.C.) [Para 6]
Shridhar Waman Surushe Vs. State of Maharashtra, 1987(1) Bom.C.R. 533 [Para 6,12]
R. N. Kakkar Vs. Hanif Gafoor Naviwala, 1996 Cri.L.J. 365 [Para 6,12]
Iddar Vs. Aabida, 2007 ALL MR (Cri) 2073 (S.C.)=AIR 2007 SC 3029 [Para 15]

JUDGMENT

JUDGMENT:- Rule made returnable forthwith. Heard by consent.

2. By way of present petition, the Petitioner challenges the order passed by the learned Judicial Magistrate First-Class, Jaysingpur dated 31st August, 2009 thereby rejecting the application filed by the present Petitioner below Exhibit - 24 for permission to file additional affidavit in lieu of examination-in-chief.

The undisputed facts giving rise to filing of the present petition are as under:

3. There was some business transaction between the Petitioner and the Respondent No.1. Since the nature of transaction is not relevant for adjudicating of the present petition, I do not find it necessary to refer to the rival submissions made in this behalf by learned counsel. Undisputedly, the cheques were issued in favour of the Petitioner dated 30th March, 2006. The said cheques were presented, they were dishonoured, since Respondent-accused had issued instructions to stop the payment. A notice was issued by the Petitioner. The notice was duly replied. On 23rd June, 2006 a complaint under Section 138 of the Negotiable Instruments Act came to be filed. The learned Magistrate on 23rd July, 2006 issued process. On 28th December, 2008 an affidavit in lieu of examination-in-chief came to be filed by the Petitioner. However, it appears that during the cross-examination of the Petitioner, it was noticed that certain original documents were not placed on record and therefore, an application came to be filed below Exhibit-20 for permission to produce the said documents on record. The said application at Exhibit-20 was allowed by the learned Magistrate. Subsequently, an application below Exhibit-24 for permission to file additional affidavit in lieu of examination-in-chief, so as to prove the said documents, came to be filed. It appears that in the meantime, the learned Magistrate had also passed an order thereby forfeiting the rights of the present Petitioner, for offering for further cross-examination.

4. By the impugned order, the learned Magistrate has rejected the application below Exhibit-24, which was made for filing additional affidavit. By the said order, the learned Magistrate, however, set aside the order insofar as no cross against the present Petitioner-complainant is concerned. Being aggrieved by the rejection of the application below Exhibit-24, the present Criminal Writ Petition.

5. Mr. P. M. Arjunwadkar, learned counsel appearing on behalf of the Petitioner submits that the learned trial Court has taken a totally hyper technical view in rejecting the application. He submits that the evidence of the Petitioner-complainant is still in process and it is not yet concluded. He therefore, submits that no prejudice would have been caused by allowing the application filed by the present Petitioner. He submits that in any event, the photocopies of the documents, which are referred to in the affidavit were already filed alongwith the complaint. He further submits that even an application below Exhibit-24 for permission to produce the originals of those documents was already allowed by the learned Magistrate. He therefore submits that if the Petitioner was permitted to file an additional affidavit in lieu of examination in chief so as to prove these documents, no prejudice could have been caused to the Respondent-accused. He further submits that the power under 311 are wide enough to permit the additional evidence to be lead at any stage of the trial. The learned counsel relies on the judgments of the Apex Court in the case of Godrej Pacific Tech. Limited Vs. Computer Joint India Limited (2008) 11 SCC 108 : [2009 ALL MR (Cri) 948 (S.C.)], in the case of Rajendra Prasad Vs. Narcotic Cell, (1999) SCC (Cri) 1062 and the learned Single Judge of this Court in the case of G.G.A. Naidu Vs. State of Maharashtra and ors., 2002 ALL MR (Cri) 1465.

6. Mr. U.R. Mankapure, learned counsel appearing on behalf of the Respondent No.1 on the contrary submits that the learned Magistrate has rightly exercised the jurisdiction to reject the application filed by the present Petitioner. He submits that only after it has come on record in the cross-examination of the Petitioner-complainant that the originals are not placed on record, the application in question has been filed. The learned counsel submits that the said application was nothing else, but an attempt to fill in the lacuna. It is submitted that if a party is permitted to fill in the lacuna, which in turn would affect the valuable rights accrued in favour of the accused, the same would not be permissible in the interest of justice. He submits that the learned Judge has rightly held that the complainant cannot be permitted to take advantage of his own wrong and therefore, the application has rightly been rejected. The learned counsel submits that no interference is warranted in the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India. The learned counsel has relied on the judgment of the Apex Court in the case of Mir Mohd. Omar and others Vs. State of West Bengal, (1989)4 SCC 436, in the case of Jamatraj Kewalji Govani Vs. State of Maharashtra, AIR 1968 SC 178 and in the case of Rama Paswan and others Vs. State of Jharkhand, (2007) ALL MR (Cri) 1732 (S.C.). The learned counsel also relies on the judgment of the two Single Judges of this Court in the case of Shridhar Waman Surushe Vs. State of Maharashtra and another, 1987(1) Bom. C.R. 533 and in the case of R. N. Kakkar Vs. Hanif Gafoor Naviwala, 1996 CRI. L.J. 365.

7. The only question that arises for consideration before this Court is as to whether the learned Magistrate was justified in rejecting the application of the present Petitioner for permission to file an additional affidavit in lieu of examination-in-chief, which in effect is an application for recalling the witnesses as provided under Section 311 of the Criminal Procedure Code. With the assistance of the learned counsel for the parties, I have gone through the judgments cited supra.

8. The first judgment on the point is of the Apex Court delivered by Justice M. Hidayatullah in the case of Jamatraj Kewalji Govani cited supra. In the said case, the appellant before the Apex Court was tried for the offence punishable under the Customs Act. The case of the prosecution in the said case, was that the watches, which were seized from the appellant were the goods on which the custom duties were not paid. Two witnesses i.e. the Preventive Officer of the Custom Department namely Mr. Ranade and Mr. Nanwani were examined by the Custom Department to prove the seizure. The appellant Govani did not lead evidence on his behalf. His defence was that he had neither imported the watches nor paid the custom duties on them and purchased the watches from certain customers. The appellant Govani did not lead any evidence, but filed a written statement and claimed that no offence had been disclosed against him in the prosecution case, on the basis of Section 135 of the Customs Act. It was submitted by him that under Section 123 of the Act, the burden would have been on him to prove that the goods had been customed provided the goods had been seized under the Act in the reasonable believe that they were smuggled the goods. It was submitted on his behalf that no witnesses had deposed to that effect. Thereafter, an application was filed on behalf of the prosecution for examining one Mr. Dutta the inspector of custom. The said application was filed under Section 540 of the old Code, which is analogous to the provisions of Section 311 of the present Code. The application was allowed. The said witness stated in his deposition that he had seized the watches in the reasonable believe that they were smuggled. Thereafter, said Mr. Govani was examined and given an opportunity to lead defence evidence, which was declined by him. The learned Magistrate on the basis of the evidence led, convicted the said Mr. Govani for the offence punishable under Sections 135(a) and 135(b) of the Customs Act. An appeal preferred before the High Court on the ground that the evidence of the said Mr. Dutta was improperly received by the learned Magistrate. The said appeal came to be dismissed by the High Court. The matter went to the Apex Court wherein leave was granted. An argument was sought to be led on behalf of the appellant that the trial had reached such a stage, where the Court was required to either acquit or convict the accused and therefore, the learned Magistrate could not have allowed the prosecution to fill in a gap in the case, which had in effect come to final stage. It was submitted that it was almost established that the burden, which lay on the prosecution was not discharged by the prosecution after the evidence of the PW-1 and PW-2 was recored and the written statement of the accused was placed on record and the permission granted for examination of said Mr. Dutta, to discharge the said burden, amounted to not only unfairness and unjustness, but was also not permissible within the powers under Section 540. The Apex Court observed thus:

"9. To begin with, we do not accept as sound the argument that Chapter 21 must limit the powers under Section 540. Offences under the Code of Criminal Procedure are tried in different ways according to their gravity. There are thus trials of summons and warrant cases by Magistrates, trials before High Courts and Courts of Session and summary trials. All these trials have their procedure laid down from one step to another till the stage is reached for acquittal or conviction. If the argument advanced on the basis of the procedure laid down in Chapter 21 is accepted there would be no room for the exercise of the power under Section 540 because it would always be impossible to fit it into any chapter without doing violence to the sequence established there.

10. Section 540 is intended to be wide as the repealed use of the word 'any' throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the later part is mandatory. The use of the word 'may' in the first part and of the word 'shall' in the second firmly establishes this difference. Under the first part, which is permissive, the court may act in one of three ways: (a) summon any person as a witness, (b) examine any person present in court although not summoned, and (c) recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any one of them, if the just decision of the case demands it. As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly."

9. It can thus clearly be seen that the Apex Court in the said case has clearly held that the requirement of just decision is not only to be restricted to just decision in the interest of accused, but also in the interest of prosecution. It was however, observed that the power could not be exercised so as to enable the prosecution to rebut the defence evidence. The Apex Court after considering various judgments on the point by Apex Court and various High Courts, held that the trial Court was right in thinking that a just decision of the case required that the nature of believe underlying the seizure should be before it on oath of the person making the seizure, so that Govani might be required to prove his innocent possession. It would be relevant to refer to the observations of the Apex Court as under:

"As Dutta's evidence was rightly taken and gone into, and as Govani had no defence beyond taking advantage of the inadvertent omission, the defence had no merit."

10. Insofar as the judgment of the Apex Court in the case of Rama Paswan cited supra is concerned, the judgment rather than supporting the case of the respondent, it would support the case of the petitioner. The Apex Court is clearly held that the powers under Section 311 can be exercised at any stage of any inquiry or proceedings before the Court. The only rider that has been put is that the powers should be exercised by the Court judiciously, on the principle that the wider the powers, greats the necessity for the application for judicial mind. The principle applied in the case of Jamatraj Kewalji Govani cited supra are also reiterated by the Apex Court in the said case that the section is not limited only for the benefit of the accused, but would also be applicable for the benefit of the prosecution.

11. Insofar as the judgment of the Apex Court in the case of Mir Mohd. Omar cited supra is concerned, in the said case, the prosecution evidence was closed and accused was examined under Section 313 of the Criminal Procedure Code. No application was made by the prosecution before the learned trial Judge at any stage for recalling the prosecution witness. After the statement of the accused was recorded under Section 313 of the Criminal Procedure Code, an application was filed by the public prosecutor before the High Court. The High Court for the first time directed the re-examination of the PW-34 to be permitted by the trial Court on the application filed by the prosecution in this regard. In this factual background, the Apex Court found that there was no justification for the High Court for giving liberty to the prosecution to file an application for re-examination of PW-34.

12. Insofar as the judgment of the learned Single Judge of this Court in the case of Shridhar Waman Surushe Vs. State of Maharashtra and another, 1987(1) Bom.C.R. 533 is concerned, in the facts of the said case, the learned Single Judge found that the application for recalling the witness was made after recording the statement of the accused under Section 313 of the Criminal Procedure Code and therefore, the application could not have granted at such a belated stage. Equally, in the case of R.N. Kakkar Vs. Hanif Gafoor Naviwala, 1996 CRI.L.J. 365, the learned Single Judge found that the application was made after the conclusion of the argument and the fixation of date of judgment.

13. The Apex Court in the case of Rajendra Prasad Vs. Narcotic Cell, (1999) SCC (Cri) 1062 has observed thus:

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

8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally got 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 partly 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."

14. The Apex Court further observed in paragraph 12 as under:

"12. 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."

15. The Apex Court in the case of Godrej Pacific Tech. Limited Vs. Computer Joint India Limited, (2008)11 SCC 108 : [2009 ALL MR (Cri) 948 (S.C.)] after considering the earlier judgments has also held that an application under Section 311 could be filed at any stage. The Apex Court in the case of Iddar and ors. Vs. Aabida and anr., AIR 2007 Supreme Court 3029 : [2007 ALL MR (Cri) 2073 (S.C.)] has further taken a view that the powers under Section 311, not only favours the accused, but witness favouring the prosecution case can also be examined.

16. It thus appears to be a clear view of the Apex Court that an application under Section 311 can be filed at any state of the proceedings. As held by the Apex Court in the case of Jamatraj Kewalji Govani cited supra, the only rider would be that the prosecution cannot be allowed to rebut the defence evidence unless the defence brings forward something suddenly and unexpectedly. The Apex Court in the case of Rajendra Prasad cited supra has clearly held that the powers cannot be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during final arguments. As such the contention of the learned counsel for the respondent to the effect that the application was rightly not allowed, since the non exhibiting of the documents was pointed out in the cross-examination, is totally contrary to the view taken by the Apex Court in case of Rajendra Prasad. Applying the principle to the facts of the present case, the copies of the documents are already filed alongwith the complaint, not only that, but an application below Exhibit-20 for permission to produce the original of the said documents has already been allowed by the learned trial Court. Merely because through an oversight or an inadvertence, the said documents could not be produced in the affidavit-in-lieu of examination-in-chief, cannot be a ground for rejecting the said application. In any case, the evidence of the complainant is yet to be completed. The application has been filed when the cross-examination is still in progress. As already held by the Apex Court in various pronouncements the powers under Section 311 are not only for benefit of the accused but are equally for the benefit of prosecution. The administration of justice cannot be permitted to be frustrated on mere hyper technicalities. Since, the evidence of the complainant is yet not over, no prejudice would have been caused to the accused by permitting him to file an additional affidavit in lieu of examination-in-chief, so as to prove the valuable documents. In any case, by allowing the said application, it cannot be said that prejudice would be caused to the accused, inasmuch as the accused would be very much at liberty to cross-examine the complainant, with respect to the said documents, which are sought to be proved in the affidavit in lieu of examination-in-chief.

17. I am therefore of the considered view that the learned Magistrate has erred in rejecting the application by taking a hyper technical view. The petitioner will have to be therefore, allowed. Rule is made absolute in terms of prayer clauses (a) and (b). Needless to state that the Respondent-accused would be at liberty to cross-examine the complainant in respect of the additional affidavit in lieu of examination-in-chief, which is permitted to be placed on record.

18. In the peculiar facts and circumstances of the case, though the Respondent-accused has filed pursis to the effect of not leading any evidence, it is clarified that, if in view of the changed circumstances, the Respondent-accused desires to lead any evidence, the liberty would be granted for that purpose.

19. Needless to state that the petition has been allowed by this Court only considering the scope of Section 311 of the Criminal Procedure Code and that the Court has not touched the merit of the matter. The learned trial Court would decide the matter on the basis of the evidence that would be led before him including the evidence already on record.

20. At this state, the learned counsel for the Respondent-accused prays for stay of the judgment for a period of six weeks. Since, the matter is pending before this Court from 07th October, 2009, there shall be stay to the order passed by me for a period of four weeks from today.

Ordered accordingly.