1
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
2
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
3
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.
4
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
5
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.
6
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.
7
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
8
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
9
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
10
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
11
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
12
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
13
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”.
14
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:-
15
“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
16
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
17
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
18
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
19
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.
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
2
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
3
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.
4
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
5
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.
6
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.
7
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
8
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
9
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
10
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
11
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
12
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
13
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”.
14
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:-
15
“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
16
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
17
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
18
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
19
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.
