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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURSIDCITON

CRIMINAL APPEAL NO. 499 OF 2014

RATANLAL … APPELLANT

VERSUS

PRAHLAD JAT & ORS. …RESPONDENTS

J U D G M E N T

S.ABDUL NAZEER, J.

1 This appeal is directed against the order dated 22.5.2012 in

S.B. Criminal Miscellaneous Petition No.1679 of 2012, whereby

the High Court of Rajasthan (Jaipur Bench) has allowed the

criminal miscellaneous petition filed under Section 482 of Code of

Criminal Procedure, 1908 and has set aside the order dated

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24.04.2012 passed by Additional Sessions Judge (Fast – Track),

Sikar.

2.A charge sheet No.22 of 2009 dated 20.3.2009 was

presented under Sections 302, 201, 342, 120-B IPC against

respondent Nos.1 and 2 and three others. Charges have been

framed under the aforesaid Sections against the accused persons.

Statements of 28 witnesses have been recorded in the trial. The

statements of Sawarmal and Chandri have been recorded as PW4

and PW5 respectively. Thereafter, both moved applications before

the Sessions Judge under Section 311 of Cr.P.C. for re-recording

their statements on the ground that the previous statements

were made under the influence of the police. In the applications,

the witnesses have stated that respondent Nos.1 and 2 had no

role in the incident.

3.The Sessions Judge by the order dated 24.4.2012, dismissed

the applications observing that the 28 witnesses had already

been examined in the case so far. The witnesses were also

cross-examined at length and it cannot be said that they were in

any kind of pressure and that the applications were filed with a

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view to favour the accused persons. Prahlad Jat and Mahavir, the

two accused persons, moved the petition before the High Court

for quashing the said order and the High Court has allowed the

applications of PW4 and PW5.

4.Learned counsel for the appellant, urged that PW4 and PW5

were examined in the Court on different dates in the months of

November and December 2010 and in March 2011. Out of total

35 witnesses, 28 witnesses have already been examined and they

were cross-examined at length. PWs 4 and 5 filed applications

before the trial court for further examination on 27.2.2012 and

26.3.2012 respectively. During police investigation and

examination conducted by the prosecution, they had supported

the prosecution story. The applications have been filed with an

intention to provide assistance to the accused persons which

cannot be permitted in law. The applications are highly belated

and no reason, whatsoever, has been assigned for the delay.

Therefore, the High Court was not justified in setting aside the

well-reasoned order of the Sessions Judge.

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5.On the other hand, learned counsel appearing for

respondent No.4 submits that the appellant has no locus standi to

file this appeal. It is contended that the Sessions Judge has

ample power to examine or re-examine any witness under

Section 311 of the Cr.P.C. to bring on record the best possible

evidence to meet the ends of justice. Keeping this principle in

mind the High Court has allowed the petition. Learned counsel

appearing for the third respondent has supported the case of the

appellant. We have carefully considered the arguments of the

learned counsel made at the Bar.

6.The appellant is the paternal brother of the deceased and is

one of the prosecution witnesses. The evidence of PW4 and PW5

was recorded on different dates in the months of November and

December 2010 and in March 2011. Both of them had supported

the case of the prosecution. After passage of about 14 months,

PW4 and PW5 filed applications under Section 311 of the Cr.P.C.,

inter alia, praying for their re-examination as witnesses for the

reason that the statements recorded earlier were made on the

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instructions of the police. The Sessions Judge dismissed the

application by holding as under:

“The charges have already been framed

under sections 302, 201, 342, 120 B IPC

against the accused persons. Statements of

28 witnesses have already been recorded in

the trial. The statements of applicant namely

Sawarmal has already been recorded as

witness PW4 and the statements of applicant

namely Chandri have also already been

recorded as witness PW5. Thereafter, the

said applications have been filed. Said

witnesses have already undergone a lengthy

cross examination. During the police

investigation and examination conducted by

the prosecution, wherein they have

supported prosecution story, it cannot be said

that at such time, the witnesses were under

any pressure. In such circumstances, it is

not justified to make the Court as weapon to

adjudicate in own favour and the above both

applications are without any merit and

presented with the intention to provide

assistance to the accused persons, due to

which, the same are not liable to be

admitted. Resultant, the above presented

both applications dated 27.02.2012 and

26.03.2012 under section 311 CrPC on behalf

of the applicants are not liable to be

admitted, therefore, the same are

dismissed”.

This order of the Sessions Judge has been set aside by the High

Court.

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7.Having regard to the contentions urged, the first question

for consideration is whether the appellant has locus standi to

challenge the order of the High Court.

8.In Black’s Law Dictionary, the meaning assigned to the term

‘locus standi’ is ‘the right to bring an action or to be heard in a

given forum’. One of the meanings assigned to the term ‘ locus

standi’ in Law Lexicon of Sri P.Ramanatha Aiyar, is ‘a right of

appearance in a Court of justice’. The traditional view of locus

standi has been that the person who is aggrieved or affected has

the standing before the court, that is to say, he only has a right

to move the court for seeking justice. The orthodox rule of

interpretation regarding the locus standi of a person to reach the

Court has undergone a sea change with the development of

constitutional law in India and the Constitutional Courts have

been adopting a liberal approach in dealing with the cases or

dislodging the claim of a litigant merely on hyper-technical

grounds. It is now well-settled that if the person is found to be

not merely a stranger to the case, he cannot be non-suited on the

ground of his not having locus standi.

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9.However, criminal trial is conducted largely by following the

procedure laid down in Cr.P.C. Locus standi of the complaint is a

concept foreign to criminal jurisprudence. Anyone can set the

criminal law in motion except where the statute enacting or

creating an offence indicates to the contrary. This general

principle is founded on a policy that an offence, that is an act or

omission made punishable by any law for the time being in force,

is not merely an offence committed in relation to the person who

suffers harm but is also an offence against the society.

Therefore, in respect of such offences which are treated against

the society, it becomes the duty of the State to punish the

offender. In A.R. Antulay v. Ramdas Sriniwas Nayak & Anr .

(1984) 2 SCC 500, a Constitution Bench of this Court has

considered this aspect as under:-

“In other words, the principle that anyone

can set or put the criminal law in motion

remains intact unless contra-indicated by a

statutory provision. This general principle of

nearly universal application is founded on a

policy that an offence i.e. an act or omission

made punishable by any law for the time

being in force [See Section 2(n) CrPC] is not

merely an offence committed in relation to

the person who suffers harm but is also an

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offence against society. The society for its

orderly and peaceful development is

interested in the punishment of the offender.

Therefore, prosecution for serious offences is

undertaken in the name of the State

representing the people which would exclude

any element of private vendetta or

vengeance. If such is the public policy

underlying penal statutes, who brings an act

or omission made punishable by law to the

notice of the authority competent to deal

with it, is immaterial and irrelevant unless

the statute indicates to the contrary.

Punishment of the offender in the interest of

the society being one of the objects behind

penal statutes enacted for larger good of the

society, right to initiate proceedings cannot

be whittled down, circumscribed or fettered

by putting it into a strait-jacket formula of

locus standi unknown to criminal

jurisprudence, save and except specific

statutory exception”.

10.In Manohar Lal v. Vinesh Anand & Ors. (2001) 5 SCC

407, this Court has held that doctrine of locus standi is totally

foreign to criminal jurisprudence. To punish an offender in the

event of commission of an offence is to subserve a social need.

Society cannot afford to have a criminal escape his liability since

that would bring about a state of social pollution which is neither

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desired nor warranted and this is irrespective of the concept of

locus.

11.In Arunachalam v. P.S.R. SADHANANTHAM & ANR.

(1979) 2 SCC 297, this Court has considered the competence of a

private party, as distinguished from the State to invoke the

jurisdiction of this Court under Article 136 of the Constitution

against a judgment of acquittal by the High Court. It was held

that appellate power vested in the Supreme Court under Article

136 of the Constitution is not to be confused with ordinary

appellate power exercised by appellate courts and appellate

tribunals under specific statutes. Article 136 of the Constitution

vests the Supreme Court with a plentitude of plenary, appellate

power over all Courts and Tribunals in India. The power is plenary

in the sense that there are no words in Article 136 itself qualifying

that power. But, the very nature of the power has led the Court

to set limits to itself within which it has to exercise such power.

The power is vested in the Supreme Court but the right to invoke

the Court’s jurisdiction is vested in no one. The exercise of the

power of the Supreme Court is not circumscribed by any

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limitation as to who may invoke it. The Court found that the

judgment of acquittal by the High Court has led to serious

miscarriage of justice. Therefore, it was held that Supreme Court

cannot refrain from doing its duty and abstain from interfering on

the ground that a private party and not the State has invoked the

Court’s jurisdiction.

12.The accused in Arunachalam (supra) had filed a writ

petition under Article 32 contending that the Supreme Court has

no power to grant special leave to the brother of the deceased.

This writ petition was decided by a Constitution Bench in P.S.R

Sadhanantham v. Arunachalam & Anr . (1980) 3 SCC 141.

Rejecting the contention of the petitioner, this Court held as

under:-

“In express terms, Article 136 does not

confer a right of appeal on a party as such

but it confers a wide discretionary power on

the Supreme Court to interfere in suitable

cases. It is residuary power and is

extraordinary in its amplitude. But the

Constitution makers intended in the very

terms of Article 136 that it shall be exercised

by the highest judges of the land with

scrupulous adherence to judicial principles

well established by precedents in our

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jurisprudence. Article 136 has a composite

structure of power-cum-procedure inasmuch

as there is an in-built prescription of exercise

of judicial discretion and mode of hearing. It

is fair to assume that while considering the

petition under Article 136 the court will pay

attention to the question of liberty, the

person who seeks such leave from the court,

his motive and his locus standi and the

weighty factors which persuade the court to

grant special leave. When this conspectus of

processual circumstances and criteria play

upon the jurisdiction of the court under

Article 136, it is reasonable to conclude that

the desideratum of fair procedure implied in

Article 21 is adequately answered. Though

parties promiscuously ‘provoke’ this

jurisdiction, the court parsimoniously invokes

the power. Moreover, the court may not,

save in special situations, grant leave to one

who is not eo nomine a party on the record.

Thus, procedural limitations exist and are

governed by well-worn rules of guidance”.

13.In Ramakant Rai v. Madan Rai & Ors . (2003) 12 SCC

395, and Esher Singh v. State of A.P. (2004) 11 SCC 585, it

was held that the Supreme Court can entertain appeals against

the judgment of acquittal by the High Court at the instance of

interested parties also. The circumstance that Criminal Procedure

Code does not provide for an appeal to the High Court against an

order of acquittal by a subordinate court at the instance of a

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private party has no relevance to the question of power of

Supreme Court under Article 136.

14.In Amanullah and Anr . v. State of Bihar and Ors. (2016)

6 SCC 699, this Court has held that the aggrieved party cannot

be left to the mercy of the State to file an appeal. It was held as

under :-

“19…… Now turning our attention towards the

criminal trial, which is conducted, largely, by

following the procedure laid down in CrPC.

Since, offence is considered to be a wrong

committed against the society, the

prosecution against the accused person is

launched by the State. It is the duty of the

State to get the culprit booked for the

offence committed by him. The focal point,

here, is that if the State fails in this regard

and the party having bona fide connection

with the cause of action, who is aggrieved by

the order of the court cannot be left at the

mercy of the State and without any option to

approach the appellate court for seeking

justice”.

15.It is thus clear that Article 136 does not confer a right to

appeal on any party but it confers a discretionary power on the

Supreme Court to interfere in suitable cases. The exercise of the

power of the court is not circumscribed by any limitation as to

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who may invoke it. It does not confer a right to appeal, it confers

only a right to apply for special leave to appeal. Therefore, there

was no bar for the appellant to apply for special leave to appeal

as he is an aggrieved person. This Court in exercise of its

discretion granted permission to the appellant to file the special

leave petition on 03.08.2012 and leave was granted on

24.02.2014.

16.That brings us to the next question as to whether the High

Court was justified in setting aside the order of the Sessions

Judge and allowing the application filed by PWs 4 and 5 for their

re-examination. For ready reference Section 311 of the Cr.P.C. is

as under:

“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”.

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17.In order to enable the court to find out the truth and render

a just decision, the salutary provisions of Section 311 are enacted

whereunder any court by exercising its discretionary authority at

any stage of inquiry, trial or other proceeding can summon any

person as witness or examine any person in attendance though

not summoned as a witness or recall or re-examine any person

already examined who are expected to be able to throw light

upon the matter in dispute. The object of the provision as a

whole is to do justice not only from the point of view of the

accused and the prosecution but also from the point of view of an

orderly society. This power is to be exercised only for strong and

valid reasons and it should be exercised with caution and

circumspection. Recall is not a matter of course and the

discretion given to the court has to be exercised judicially to

prevent failure of justice. Therefore, the reasons for exercising

this power should be spelt out in the order.

18.In Vijay Kumar v. State of Uttar Pradesh and Anr .,

(2011) 8 SCC 136, this Court while explaining scope and ambit of

Section 311 has held as under:-

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“Though Section 311 confers vast discretion

upon the court and is expressed in the widest

possible terms, the discretionary power

under the said section can be invoked only

for the ends of justice. Discretionary power

should be exercised consistently with the

provisions of CrPC and the principles of

criminal law. The discretionary power

conferred under Section 311 has to be

exercised judicially for reasons stated by the

court and not arbitrarily or capriciously”.

19.In Zahira Habibullah Sheikh (5) and Anr . v. State of

Gujarat and Others , (2006) 3 SCC 374, this Court has

considered the concept underlining under Section 311 as under:-

“The object underlying Section 311 of the

Code is that there may not be failure of

justice on account of mistake of either party

in bringing the valuable evidence on record

or leaving ambiguity in the statements of the

witnesses examined from either side.

The determinative factor is whether it is

essential to the just decision of the case. The

section is not limited only for the benefit of

the accused, and it will not be an improper

exercise of the powers of the court to

summon a witness under the section merely

because the evidence supports the case of

the prosecution and not that of the accused.

The section is a general section which applies

to all proceedings, enquiries and trials under

the Code and empowers the Magistrate to

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issue summons to any witness at any stage

of such proceedings, trial or enquiry. In

Section 311 the significant expression that

occurs is “at any stage of any inquiry or trial

or other proceeding under this Code”. It is,

however, to be borne in mind that whereas

the section confers a very wide power on the

court on summoning witnesses, the

discretion conferred is to be exercised

judiciously, as the wider the power the

greater is the necessity for application of

judicial mind”.

20.In State (NCT of Delhi) v. Shiv Kumar Yadav & Anr .,

(2016) 2 SCC 402, it was held thus:-

“…………… Certainly, recall could be permitted

if essential for the just decision, but not on

such consideration as has been adopted in

the present case. Mere observation that

recall was necessary “for ensuring fair trial”

is not enough unless there are tangible

reasons to show how the fair trial suffered

without recall. Recall is not a matter of

course and the discretion given to the court

has to be exercised judiciously to prevent

failure of justice and not arbitrarily. While

the party is even permitted to correct its

bona fide error and may be entitled to further

opportunity even when such opportunity may

be sought without any fault on the part of the

opposite party, plea for recall for advancing

justice has to be bona fide and has to be

balanced carefully with the other relevant

considerations including uncalled for hardship

to the witnesses and uncalled for delay in the

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trial. Having regard to these considerations,

there is no ground to justify the recall of

witnesses already examined”.

21.The delay in filing the application is one of the important

factors which has to explained in the application. In Umar

Mohammad & Ors . v. State of Rajasthan, (2007) 14 SCC 711,

this Court has held as under:-

“Before parting, however, we may notice that

a contention has been raised by the learned

counsel for the appellant that PW 1 who was

examined in Court on 5-7-1994 purported to

have filed an application on 1-5-1995 stating

that five accused persons named therein

were innocent. An application filed by him

purported to be under Section 311 of the

Code of Criminal Procedure was rejected by

the learned trial Judge by order dated

13-5-1995. A revision petition was filed

thereagainst and the High Court also rejected

the said contention. It is not a case where

stricto sensu the provisions of Section 311 of

the Code of Criminal Procedure could have

been invoked. The very fact that such an

application was got filed by PW 1 nine

months after his deposition is itself pointer to

the fact that he had been won over. It is

absurd to contend that he, after a period of

four years and that too after his

examination-in-chief and cross-examination

was complete, would file an application on his

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own will and volition. The said application

was, therefore, rightly dismissed”.

22. Coming to the facts of the present case, PWs 4 and 5 were

examined between 29.11.2010 and 11.3.2011. They were

cross-examined at length during the said period. During the

police investigation and in their evidence, they have supported

the prosecution story. The Sessions Judge has recorded a finding

that they were not under any pressure while recording their

evidence. After a passage of 14 months, they have filed the

application for their re-examination on the ground that the

statements made by them earlier were under pressure. They

have not assigned any reasons for the delay in making

application. It is obvious that they had been won over. We do not

find any reasons to allow such an application. The Sessions

Judge, therefore, was justified in rejecting the application. In our

view, High Court was not right in setting aside the said order.

23.In the result, the appeal succeeds and it is accordingly

allowed. The order of the High Court in S.B. Criminal

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Miscellaneous Petition No.1679 of 2012, dated 22.5.2012 is

hereby set aside. All pending applications also stand disposed of.

24.We find from the records that after the order of the High

Court, PWs 4 and 5 were re-examined before the Trial Court.

The Trial Court is directed to proceed with the matter without

taking into consideration the evidence of PWs 4 and 5 recorded

after the order of the High Court.

………………………………J.

(J. CHELAMESWAR)

………………………………J.

(S. ABDUL NAZEER)

New Delhi;

September 15, 2017.