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