The Indian Penal Code,
1860 - Sections 477A, 471, 468, 420 and 120B - The Prevention of Corruption
Act, 1947 - Ss. 5(1)(c)(d) r/w. 5(2).
The Code of Criminal Procedure, 1973 - Section 311 - Power to
summon material witness, or examine person present - Where the prosecution
evidence has been closed long back and the reasons for non-examination of the
witness earlier is not satisfactory, the summoning of the witness at belated
stage would cause great prejudice to the accused and should not be allowed.
Similarly, the court should not encourage the filing of successive applications
for recall of a witness under this provision.
The first part of this Section which
is permissive gives purely discretionary authority to the criminal court and
enables it at any stage of inquiry, trial or other proceedings under the Code
to act in one of the three ways, namely, (i) to summon any person as a witness;
or (ii) to examine any person in attendance, though not summoned as a witness;
or (iii) to recall and re-examine any person already examined. The second part,
which is mandatory, imposes an obligation on the court (i) to summon and
examine or (ii) to recall and re-examine any such person if his evidence
appears to be essential to the just decision of the case. It is well settled
that the power conferred under Section 311 should be invoked by the court only
to meet the ends of justice. The power is to be exercised only for strong and
valid reasons and it should be exercised with great caution and circumspection.
The court has vide power under this Section to even recall witnesses for
reexamination or further examination, necessary in the interest of justice, but
the same has to be exercised after taking into consideration the facts and
circumstances of each case. The power under this provision shall not be
exercised if the court is of the view that the application has been filed as an
abuse of the process of law.
Facts of the Case
In the instant case, the case was
registered in the year 1983. 29 prosecution witnesses have already been
examined. The application of the prosecution to examine Mr. H.S. Tuteja was
allowed in the year 2004. However, prosecution has failed to keep 6 him in
court for his examination. Thereafter, multiple applications have been filed to
summon him and all of them have been allowed. However, the prosecution has
failed to procure his attendance in the court. On 28.07.2011 the High Court of
Calcutta gave the prosecution a last opportunity to procure his attendance and
declared that in case of failure on the part of the CBI to procure the
attendance of witnesses and get them examined, the Trial Court will proceed
further with the trial without granting any further adjournment to the CBI.
Even thereafter, the applications filed by the CBI have been allowed. On
15.09.2014, yet again, the High Court in a criminal revision application
observed that since the trial is pending for a long time, steps must be taken
by the trial court to conclude the trial as expeditiously as possible,
preferably within six months. Even thereafter, the trial court has allowed the
application filed by the prosecution for summoning Mr. H.S. Tuteja, which order
has been confirmed by the High Court. In our view, the High Court ought to have
accepted the appeal and rejected the application of the prosecution for
summoning the witness, Mr. H.S. Tuteja. In the result, the appeal succeeds and
it is accordingly allowed. The orders of the High Court dated 04.05.2017, as
well as of the Trial Court dated 05.12.2014 are hereby quashed and the
application filed by the Prosecutor for summoning Mr. H.S. Tuteja is hereby
dismissed.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
(A.K. SIKRI) AND (S. ABDUL NAZEER) JJ;
January 04, 2019.
CRIMINAL APPEAL NO. 15 OF 2019
(Arising out of S.L.P. (Crl.) No.7748 of 2017)
SWAPAN KUMAR CHATTERJEE … APPELLANT
VERSUS
CENTRAL BUREAU OF INVESTIGATION … RESPONDENT
J U D G M E N T
S. ABDUL NAZEER, J.
1. Leave granted.
2. The appellant- Swapan Kumar
Chatterjee has challenged the order dated 04.05.2017 in CRR No. 440/2015 passed
by the High Court at Calcutta, whereby the High Court confirmed the order dated
05.12.2014 passed by the Trial Court permitting the examination of one witness
Mr. H.S. Tuteja.
3. Brief facts necessary for
disposal of this appeal are as under:
4.
A complaint was lodged by one Mr. P.N. Khanna before the Superintendant of
Police, Central Bureau of Investigation (for short 'CBI'), Economic Offences
Wing, Church Lane Calcutta, where the present appellant with others was arrayed
as accused in CBI case No.7/E/83 dated 20.08.1983 under Sections 477A/471/468/420/120B
of the Indian Penal Code, 1860. After completion of the investigation,
investigating agency filed chargesheet under the aforesaid sections and also
under Section 5(1)(c)(d) read with Section 5(2) of the Prevention of Corruption
Act, 1947 against the appellant and three others. The case was put on trial.
Twenty nine prosecution witnesses were examined. The Public Prosecutor filed a
petition praying for examination of handwriting expert Mr. H.S. Tuteja, which
was allowed and a date was fixed on 24.03.2004 and then to 26.03.2004 for his examination.
Prosecution was directed to issue summons to the witnesses well in advance of
the date of evidence. However, Mr. H.S. Tuteja failed to appear before the
Court due to which Prosecutor further sought time for fixing of a schedule till
next day for his examination. This request of the Prosecutor was accepted by the
Magistrate with a direction that the schedule is fixed on andfrom 10.05.2004 to
12.05.2004, and prosecution was directed to summon all the witnesses including
Mr. H.S. Tuteja. The said witness yet again failed to turn up. The Prosecutor
did not pray for re-issuing of summons and bailable warrant, but a separate petition
was filed by the Prosecutor for re-summoning the witnesses including Mr. H.S.
Tuteja. Such prayer was considered by the Magistrate as a last chance. From
then onwards, whenever a date is fixed for examining Mr. H.S. Tuteja, he would
fail to turn up and the prosecution would invariably come up with a petition
either praying for time or for adjournment of the matter.
5. Interestingly, this
practice has been going on unopposed for a period of thirteen years starting
from the year 2004. It is necessary to notice here that the High Court of
Calcutta in CRR No. 3436 of 2006 disposed of on 28.07.2011 gave a last
opportunity to the CBI to procure attendance of Mr. H.S. Tuteja. It was
observed that in case of failure on the part of the CBI to procure his
attendance, and the attendance of other witnesses and get them examined, the
Trial Court will proceed further with the trial without granting any further
adjournment to the CBI keeping in mind that the case is still pending from the
year 1985.
6.
However, the Trial Court still allowed the prosecution time to present their
witness Mr. H.S. Tuteja on 03.02.2012, who by now was nothing short of a
creature of fiction and whose presence has been warranted yet unattained for
over a decade. Despite summon was duly served upon, he was not present on that
date also. Again, the matter was adjourned to 24.02.2012 for his evidence. Even
thereafter on several dates, the CBI failed to produce the said witness.
7. Again, the High Court of
Calcutta in Criminal Revision Application No.2696 of 2014 dated 15.09.2014
observed that since the trial is pending in the Trial Court for a long time, all
steps must be taken by the Trial Court to conclude the trial as expeditiously
as possible, preferably within coming six months.
8. On 25.11.2014, the
appellant was examined as DW-1. On the same day the prosecution again filed an
application to examine Mr. H.S. Tuteja. This application was allowed by the
Magistrate on 05.12.2014 and said order has been confirmed by the High Court.
9. We have heard learned
senior counsel and learned ASG appearing for the parties.
10.
Section 311 of the Code of Criminal Procedure, 1973 (for short 'the Code')
provides for the power of the court to summon material witness or examination
person present. It reads as follows:
"311. Power to summon material witness, or examine
person present.—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-examine 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."
11.
The first part of this Section which is permissive gives purely discretionary
authority to the criminal court and enables it at any stage of inquiry, trial
or other proceedings under the Code to act in one of the three ways, namely,
(i) to summon any person as a witness; or (ii) to examine any person in
attendance, though not summoned as a witness; or (iii) to recall and re-examine
any person already examined. The second part, which is mandatory, imposes an
obligation on the court (i) to summon and examine or (ii) to recall and
re-examine any such person if his evidence appears to be essential to the just
decision of the case.
12.
It is well settled that the power conferred under Section 311 should be invoked
by the court only to meet the ends of justice. The power is to be exercised
only for strong and valid reasons and it should be exercised with great caution
and circumspection. The court has vide power under this Section to even recall
witnesses for reexamination or further examination, necessary in the interest
of justice, but the same has to be exercised after taking into consideration
the facts and circumstances of each case. The power under this provision shall
not be exercised if the court is of the view that the application has been
filed as an abuse of the process of law.
13. Where the prosecution
evidence has been closed long back and the reasons for non-examination of the
witness earlier is not satisfactory, the summoning of the witness at belated
stage would cause great prejudice to the accused and should not be allowed. Similarly,
the court should not encourage the filing of successive applications for recall
of a witness under this provision.
14. In the instant case, the
case was registered in the year 1983. 29 prosecution witnesses have already
been examined. The application of the prosecution to examine Mr. H.S. Tuteja
was allowed in the year 2004. However, prosecution has failed to keephim in
court for his examination. Thereafter, multiple applications have been filed to
summon him and all of them have been allowed. However, the prosecution has
failed to procure his attendance in the court.
15. As mentioned earlier, on
28.07.2011 the High Court of Calcutta gave the prosecution a last opportunity
to procure his attendance and declared that in case of failure on the part of
the CBI to procure the attendance of witnesses and get them examined, the Trial
Court will proceed further with the trial without granting any further
adjournment to the CBI. Even thereafter, the applications filed by the CBI have
been allowed.
16. On 15.09.2014, yet again,
the High Court in a criminal revision application observed that since the trial
is pending for a long time, steps must be taken by the trial court to conclude
the trial as expeditiously as possible, preferably within six months. Even
thereafter, the trial court has allowed the application filed by the
prosecution for summoning Mr. H.S. Tuteja, which order has been confirmed by
the High Court. In our view, the High Court ought to have accepted the appeal
and rejected the application of the prosecution for summoning the witness, Mr.
H.S. Tuteja.
17.
In the result, the appeal succeeds and it is accordingly allowed. The orders of
the High Court dated 04.05.2017, as well as of the Trial Court dated 05.12.2014
are hereby quashed and the application filed by the Prosecutor for summoning
Mr. H.S. Tuteja is hereby dismissed.