Under Section 173(5) read with Section 311 of Code of Criminal Procedure, 1973(hereinafter being referred to as “Cr PC”) for summoning the witnesses along with securing the relevant records to meet the ends of justice.
Section 173(5) read with Section311 CrPC for summoning the witnesses along with the concerned documents to adduce their evidence in connection with the secondpost mortem conducted on the body of the deceased =
The object underlying Section 311 CrPC 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 significant expression that occurs is “at any stage of 8 any inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that the discretionary power conferred under Section 311 CrPC has to be exercised judiciously, as it is always said “wider the power, greater is the necessity of caution while exercise of judicious discretion.”
In the instant case, although the application was filed by the Ld. Additional Special Public Prosecutor under Section 173(5) read with Section 311 CrPC but it was open for the Ld. Trial Judge as well to exercise suo motu powers in summoning the witnesses whose statements ought to be recorded to subserve the cause of justice, with the object of getting the evidence in aid of a just decision and to uphold the truth.
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 267 OF 2021
(Arising out of SLP(Crl.) No(s). 8965 of 2018)
V.N. PATIL ….APPELLANT(S)
VERSUS
K. NIRANJAN KUMAR & ORS. ….RESPONDENT(S)
J U D G M E N T
Rastogi, J.
1. Leave granted.
2. Respondent nos. 1 to 3 are facing criminal trial in Sessions
Case No. 538 of 2004 for offences under Sections 498A, 304B, 302
read with Section 34 of the Indian Penal Code(hereinafter being
referred to as “IPC”) and under Section 4 and 6 of the Dowry
Prohibition Act, 1961 due to the death of wife of the 1st respondent
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under unnatural circumstances on intervening night of 2nd/3rd
April, 2004 at Bangalore.
3. During pendency of the trial, an application was filed by the
Ld. Additional Special Public Prosecutor under Section 173(5) read
with Section 311 of Code of Criminal Procedure, 1973(hereinafter
being referred to as “CrPC”) for summoning the witnesses along
with securing the relevant records to meet the ends of justice. The
Ld. Additional City Civil & Sessions Judge, Bengaluru City, after
detailed discussion and taking note of the scope of Section 311
CrPC allowed the application by its order dated 3rd September,
2016, after assigning cogent reasons in support thereof.
4. This came to be challenged by respondent nos. 1 to 3 in a
petition filed under Section 482 CrPC. The Ld. Judge of the High
Court after recording submissions made by the learned counsel for
the parties, without assigning any reasons, albeit brief, which may
at least facilitate this Court to understand what weighed with the
Judge in setting aside the finding recorded by the Ld. Trial Judge in
its Order dated 3rd September 2016 by its impugned judgment
dated 11th January, 2017.
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5. Aggrieved by the order of the High Court impugned dated 11th
January 2017, the appellantcomplainant(father of the deceased)
has approached this Court by way of special leave.
6. The background facts in brief which may be relevant for the
purpose are that the marriage of Keerthi(deceaseddaughter of the
appellant) was solemnized with the 1st respondent on 17th February,
2002. On the intervening night of 2nd/3rd April, 2004, at about 3.30
am, the appellant received a call that her daughter had died. In
connection with her unnatural death, on the basis of a complaint
filed by the appellant (father of the deceased), Crime No. 162/2004
came to be registered at the Sanjay Nagar Police Station, Bangalore
for an offence punishable under Section 302, 498A IPC.
7. During the course of trial, as per the record and evidence, the
examination of all the relativewitnesses and the documentary
evidence produced by the investigating officer, indicates that the
second postmortem on the victim’s body was conducted on 4th
April, 2004 by the team of 5 doctors in J.J. Hospital, Mumbai, in
respect of which the investigating officer/PW 44 had corresponded
under Exhibit P140 to Exhibit P142 seeking for the copy of the
3
said second postmortem on 13th September, 2005 itself. It further
reveals that the stated documents indicated above were not made
available to the investigating officer during the submission of the
main chargesheet and additional chargesheet. Ld. Trial Court had
permitted to produce the documents by its order dated 30th
October, 2012. Even after Exhibit P142, the original documents of
the stated second postmortem with the other relevant documents
were still with the Mumbai doctors and police and PW 27 Dr.
Bheemappa Havanur who conducted the first post mortem on 3rd
April, 2004 turned hostile. At this stage, application came to be
filed by the Ld. Additional Special Public Prosecutor under Section
173(5) read with Section 311 CrPC for summoning the witnesses
and to examine the Doctor who conducted the second postmortem
to meet the ends of justice.
8. Learned counsel for the respondents made various
submissions in questioning the application filed under Section
173(5) read with Section 311 CrPC when the trial reached the stage
of hearing and contended that the witnesses cited to be summoned
for the purpose of examining them on behalf of the prosecution, are
4
neither the witnesses examined by the investigating officer during
the course of his investigation, nor cited as the prosecution
witnesses in the final report. What is sought to be brought on
record is the result of the private investigation said to have been
done at the instance of members of the family of the deceased
alone, and not at the instance of the investigating officer, or the
accused. After the prosecution witness PW 27 Dr. Bheemappa
Havanur, who conducted the autopsy on the dead body of the
deceased, was declared hostile, application is said to have been filed
to fill up the gap at the stage of investigation which is not
permissible in law, and also raised objections on the merits of the
matter as to what will be the effect of the second post mortem which
had been conducted on the body of the deceased in J.J. Hospital,
Mumbai.
9. The Ld. Trial Judge, after perusal of record and taking into
consideration the rival contentions of the parties, observed that the
case is registered initially at Sanjay Nagar Police Station,
Bengaluru, under Crime No. 162/2004, which was later on
investigated by the then Cord of Detectives(COD), Bengaluru, and
5
thereafter the original chargesheet and also additional chargesheet was submitted, in which there is a clear reference on record
documentarily as well as in the deposition of PW 44 who is stated to
be the investigating officer. The record further reveals that the
second post mortem which was got conducted at J.J. Hospital,
Mumbai appears to have been made through the Worli Police,
Mumbai by lodging the complaint there, by the members of the
family of the deceased, wherefor, at the very outset, it is not the
post mortem having made privately, as it is through the Police at
Mumbai.
10. It was further observed that as per Exhibits P136, P140 to
P142, which are available on record that PW44 Investigating
Officer had initiated the correspondence with the Worli Police, as
well with the Doctors of J.J. Hospital, seeking for sending copy of
the second postmortem which clearly indicates that the very
intendment prevailed with PW 44 in corresponding with the Worli
Police, Mumbai and Mumbai Doctors with the Exhibits P136 and
P142 to obtain the said copy of the second post mortem conducted
at the J.J. Hospital, Mumbai, required for investigation by him in
6
Bengaluru, by considering it as part and parcel of his investigation,
and the second post mortem is not the outcome of the personal
instance of the family members of the deceased, but the relevance
of the second post mortem with the case, which PW44 has deposed
in his chiefexamination itself, more particularly, in connection with
Exhibit P136 and Exhibits P140 to P142.
11. Taking note of the factual matrix of the matter on record, the
Ld. Trial Judge, after assigning cogent reasons, allowed the
application filed under Section 311 CrPC to meet the ends of justice
observing further that no hardship or prejudice would be caused to
the respondents accused, since the said witnesses and documents
intended to be summoned, will certainly be subjected to crossexamination and their testification, as per the provisions of CrPC.
12. The order of the Trial Court was assailed by the respondent
nos. 1 to 3 in Criminal Petition No. 7887 of 2016 under Section 482
CrPC. The High Court has not taken pains to examine the scope
and ambit of Section 311 CrPC, and the reasoning assigned by the
Ld. Trial Judge, and erroneously set aside the order of the Ld. Trial
7
Judge dated 3rd September, 2016 by its impugned judgment dated
11th January, 2017.
13. After going through the rival submissions and perusal of the
record of the case with reference to the law applicable, in our
considered view, the judgment impugned before us is unsustainable
in law, and we find it difficult to approve it.
14. The scope of Section 311 CrPC which is relevant for the
present purpose is reproduced hereunder:
“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 reexamine any person already examined; and the
Court shall summon and examine or recall and reexamine
any such person if his evidence appears to it to be essential
to the just decision of the case.”
15. The object underlying Section 311 CrPC 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 significant expression that occurs is “at any stage of
8
any inquiry or trial or other proceeding under this Code”. It is,
however, to be borne in mind that the discretionary power conferred
under Section 311 CrPC has to be exercised judiciously, as it is
always said “wider the power, greater is the necessity of caution
while exercise of judicious discretion.”
16. The principles related to the exercise of the power under
Section 311 CrPC have been well settled by this Court in Vijay
Kumar Vs. State of Uttar Pradesh and Another 2011(8) SCC
136.
“17. 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 the Code 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. Before directing the learned Special Judge to
examine Smt Ruchi Saxena as a court witness, the High
Court did not examine the reasons assigned by the learned
Special Judge as to why it was not necessary to examine
her as a court witness and has given the impugned
direction without assigning any reason.”
17. This principle has been further reiterated in Mannan Shaikh
and Others Vs. State of West Bengal and Another 2014(13) SCC
9
59 and thereafter in Ratanlal Vs. Prahlad Jat and Others
2017(9) SCC 340 and Swapan Kumar Chatterjee Vs. Central
Bureau of Investigation 2019(14) SCC 328. The relevant paras of
Swapan Kumar Chatterjee(supra) are as under:
“10. 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 reexamine 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 reexamine any such person if his evidence
appears to be essential to the just decision of the case.
11. 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.”
18. The aim of every Court is to discover the truth. Section 311
CrPC is one of many such provisions which strengthen the arms of
a court in its effort to unearth the truth by procedure sanctioned by
law. At the same time, the discretionary power vested under
10
Section 311 CrPC has to be exercised judiciously for strong and
valid reasons and with caution and circumspection to meet the
ends of justice.
19. Indisputedly, the facts in the instant case are that the
daughter of the appellant died an unnatural death on the
intervening night of 2nd/3rd April, 2004 in Bangalore where she was
living with the respondents who are facing trial under Sections
498A, 304B, 302 read with Section 34 IPC and under Sections 4
and 6 of the Dowry Prohibition Act, 1961 and the trial is at the fag
end of its closure and the case is listed for hearing.
20. At this stage, application came to be filed by Ld. Additional
Special Public Prosecutor under Section 173(5) read with Section
311 CrPC for summoning the witnesses along with the concerned
documents to adduce their evidence in connection with the second
post mortem conducted on the body of the deceased and after
perusal of the record, the factual statement has been recorded by
the Ld. Trial Judge in paragraphs 9 & 10 as follows:
“9. In connection with the same, at the very outset, on
record it could be seen that it is contended that the said
second postmortem is got conducted in J.J. Hospital,
11
Mumbai. The second postmortem appears to have been
made through the Worli Police, Mumbai by lodging the
complaint thereat by the members of the family of the
deceased, wherefore, at the very outset, it is not the postmortem having got made privately, as it is through the
Police.
10. Notwithstanding as to whether the Worli Police have
further continued the investigation or otherwise or directly
connected to the instant case in hand, it is clear from the
records as per Exhibits P136, P140 to P142 which are
available on record that the PW44/Investigating Officer
had initiated the correspondence with the Worli Police as
well as the Doctors of J.J. Hospital seeking for sending the
copy of the second postmortem, which clearly goes to
indicate that the very intendment prevailed with the PW44/Investigating Officer in corresponding with the said
Worli Police, Mumbai and Mumbai Doctors in accordance
with the Exhibits P136 and P142, reveals that the said
copy of the second postmortem conducted at the J.J.
Hospital, Mumbai, was required for the investigation by him
in Bengaluru, by considering it as the part and parcel of his
investigation.”
21. What had further transpired for summoning the witness along
with the documents in connection with the second post mortem
report has been noticed in paragraph 18 of the judgment of the
Trial Court which is extracted hereunder:
“18. It is also significant to note that, the Doctor by name
Bhimappa Havanur having stated to have conducted the
first postmortem at Bowring Hospital in Bengaluru, has
turned hostile to the prosecution, according to the
prosecution, by giving the two different contradictory and
divergent opinions in connection with the cause of death,
wherefore, now, it is equivalently incumbent upon this
Court to determine and traceout the real cause of death of
the deceased through the medical experts only who have
conducted the postmortem. Therefore, to make out the
12
reality under the peculiar circumstances of the PW 27
having turned hostile to the prosecution by giving the
contradictory and two divergent opinions, certainly the
efforts being endeavoured to put in by the prosecution to
summon the proposed witnesses along with the documents
certainly need to be taken into consideration in the positive
sense, only with an intention to see that the miscarriage of
justice in any manner is prevented at any point of spell and
juncture.”
22. In the instant case, although the application was filed by the
Ld. Additional Special Public Prosecutor under Section 173(5) read
with Section 311 CrPC but it was open for the Ld. Trial Judge as
well to exercise suo motu powers in summoning the witnesses
whose statements ought to be recorded to subserve the cause of
justice, with the object of getting the evidence in aid of a just
decision and to uphold the truth.
23. We find that the Ld. Judge of the High Court has not adverted
to the factual matrix noticed by the Ld. trial Judge in its Order
dated 3rd September, 2016 and taking note of the submissions
made by the contesting parties summarily, without assigning any
reasons, albeit brief it may be, set aside the judgment of the Ld.
trial Judge. We consider it appropriate to quote what has been
13
observed by the High Court in its impugned judgment dated 11th
January, 2017 which is as under:
“4. The learned Government Pleader would however seek to
make a weak attempt to justify the apparent illegal
procedure that has been permitted by the trial Court in
allowing the aforesaid application.
Therefore, the petition is summarily allowed. The
order dated 3.9.2016 in S.C. No. 538/2004 on the file of LI
Additional City Civil and Sessions Judge (CCH No. 52),
Bengaluru, is quashed. The court below is directed to
proceed further, in accordance with law.”
24. It is not necessary that in every case, it is required to record
elaborate reasons but since the matters are carried forward to this
Court, the reasons, albiet brief may be, have to be recorded to
facilitate this Court to understand as to what weighed with the Ld.
Judge while passing the impugned judgment, moreover, when the
finding of reversal has been recorded by the Ld. Judge in its
impugned judgment.
25. Consequently, the appeal succeeds and is allowed. The
judgment of the High Court impugned dated 11th January, 2017 is
hereby set aside. Since the trial is pending for almost 16 years by
this time, the Ld. Trial Judge may proceed in compliance of the
14
Order dated 3rd September, 2016 expeditiously and conclude the
pending trial at the earliest.
26. Pending application(s), if any, stand disposed of.
…………………………………….J.
(INDU MALHOTRA)
…………………………………….J.
(AJAY RASTOGI)
New Delhi
March 04, 2021
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