Vipin Sanghi, J.
Crl.M.A. No. 13414/2016
1. Issue notice. Ms. Behura, SPP for CBI, accepts notice.
2. I have heard the submission of learned counsel for the appellant as well as learned counsel for CBI at some length and proceed to dispose of this application.
3. The appellant has preferred this application under Sections 243/311 Cr.P.C. to seek recall of witnesses PW2-Raj Kumar, PW3-Satpal, and PW5- Inspector CBI R.V.S.Lohmor. The background in which the recall of the said witness has been sought may first be noted.
4. The allegation against the appellant was that he demanded and accepted bribe from the complainant PW3-Satpal. A trap had been laid for that purpose by the CBI. PW2 Raj Kumar was the shadow witness and PW5-Inspector RVS Lohmor was the Trap Laying Officer (TLO). As per the case of the prosecution, the appellants/accused had accepted Rs. 5,000/- from the complainant Satpal (PW3) from his right hand and put the amount in his pant pocket. However, when an alarm was raised, he threw the amount and ran away from the spot by jumping the boundary wall. The incident is alleged to be of 08.11.1996.
5. The appellant was departmentally proceeded against on 02.06.1997 (hereinafter referred to as the first departmental inquiry). This departmental inquiry was ordered against the appellant on the ground that he had wrongly made a DD entry No. 3A along with constable Mahesh Chand No. 1413/SD for attending an accident against emergency call marked to him. This alleged false DD entry was allegedly made in relation to the same crime. In the said departmental inquiry, the aforesaid three witnesses, namely, PW2 Raj Kumar-shadow witness, PW3-Satpal, the complainant, and PW5- Inspector RVS Lohmor (TLO) were examined and they all consistently stated that the appellant herein was not the Ajay Gupta who had allegedly demanded and accepted the bribe from the complainant. The TLO had made a statement to the effect, that before he could arrive at the scene of the crime, Ajay Gupta had already escaped. The appellant was found not guilty in the said first departmental proceedings vide order dated 11.03.1999.
6. The aforesaid three witness were then produced by the prosecution at the trial in the case in question under the Prevention of Corruption Act. All these witnesses testified against the appellant/accused, and it is on the basis of their testimonies that the appellant was convicted. Pertinently, the appellant did not confront either of these witnesses with the stand taken by them in the earlier departmental proceedings.
7. The appellant was convicted by the impugned judgment dated 08.07.2003. Thereafter, he preferred the present appeal.
8. In the present appeal, an application was preferred by the appellant under Section 311 read with Sections 391 and 482 Cr.P.C. being Crl.M.A. No. 8205/2005, which was allowed by the Court. The trial court was directed to examine several witnesses (primarily to establish the alibi set up by the appellant) as well as the Incharge, HAP Branch, VI Battalion, DAP. I may observe that the appellant had sought production of additional witness from the Incharge, HAP VI Battalion, DAP, Vikaspuri, Delhi, with the request that an official be deputed who could identify the signatures of Mr. P.K.Loreng the then DCP, VI Battalion, who had signed the exoneration order dated 11.03.1999 whereby the appellant was exonerated in the first departmental inquiry.
9. Additional evidence was accordingly recorded by the trial court and AW3 ASI Jaipal Singh brought the summoned record containing the proceedings of the first departmental inquiry held against the accused. He, inter alia, stated that the departmental inquiry was held against the accused vide order dated 02.06.1997. He exhibited the exoneration order dated 11.03.1999 passed in the said departmental proceedings by Shri P.K.Loreng, the then DCP, VI Battalion, Delhi Police. Incidentally, in the file brought by him, the statements of PW2-Raj Kumar, PW3-Satpal and PW5 Inspector RVS Lohmor, apart from others, made during the first departmental inquiry were also placed. All these statements were marked X1 to X6.
10. After the statements of, inter alia, PW2, PW3 and PW5, as recorded in the first departmental proceedings were brought on record (though not proved in accordance with law), the appellant moved Crl.M.A. No. 3637/2007 under Section 386(b)(i) read with Section 482 Cr.P.C. for retrial of the case from the stage of recording statement of the accused under Section 313 Cr.P.C. onwards. However, on 06.11.2009, this application was not pressed by the appellant in view of the directions already issued by the Court in the order dated 22.10.2005 in Crl.M.A. No. 8205/2005.
11. The appellant then moved another application being Crl.M.A. No. 549/2010 under Section 386(b)(i) read with Section 482 Cr.P.C. for remanding the case to the trial court for a fresh decision and passing of the judgment afresh in view of the additional evidence of six court witnesses recorded during the pendency of the appeal. By order dated 26.04.2010, this application was dismissed by the Court by observing that the same was not a sufficient and valid ground to set aside the impugned judgment and remanded the matter back for a fresh decision.
12. Another departmental inquiry was ordered against the appellant on 21.07.2010 on the basis of the complaint filed by the complainant-Satpal Singh, wherein the complainant alleged that he had been threatened by the appellant to pay Rs. 5,000/- as bribe (hereinafter referred to as the second departmental inquiry). In this departmental inquiry, once again, the three witnesses aforesaid were examined, and each of them once again made statements in favour of the accused.
13. The appellant then moved Crl.M.A. No. 3025/2011 to seek the setting aside of the impugned judgment and for a direction to the Trial Court to pass a fresh judgment in the light of the additional evidence brought on record. During pendency of Crl MA No.3025/2011, the appellant also moved Crl.M.A. No. 10082/2013 under Sections 391/311 read with Sections 482 Cr.P.C. for leading/recording additional evidence. The Court vide order dated 26.08.2013, at the request of the appellant, directed the hearing of the said application along with Crl.M.A. No. 10082/2013, which is still pending.
14. The appellant had also moved Crl.M.A. No. 3026/2011 on the plea that he had been exonerated in the first departmental inquiry and, therefore, he may be acquitted. The appellant, however, withdrew this application on 26.08.2013 itself.
15. In the meantime, the petitioner had preferred the present application.
16. The submission of Mr. Saxena, learned counsel for the appellant, firstly, is that no doubt there have been several mistakes on the part of the appellant s counsel from stage to stage. He submits that since PW2, PW3 and PW5 - while being examined in chief before the Special Judge, did not identify the appellant/accused as the person who had demanded and accepted the bribe, counsel representing the accused, at that stage, in his wisdom did not consider it necessary to cross-examine the said witnesses and confront them with their statements made in the first departmental inquiry. He further submits that even when the earlier application was moved by the appellant for leading additional evidence before this Court, which was allowed on 22.10.2005, the appellant was not properly advised to seek leave for production of PW2, PW3 and PW5 for their further crossexamination in respect of their statements made in the first departmental inquiry, which were contrary to their statements made before the Court. He submits that, in any event, the same witnesses in the second departmental inquiry which was initiated in 2010, have again made their statements in favour of the appellant. In support of his submission, he has referred to the statements of the said witnesses recorded in the two departmental proceedings, as also during the trial.
17. Mr. Saxena submits that since the endeavour of the Court is always to do justice by unearthing the truth, the said lapse on the part of the appellant and his counsel should not come in the way of justice being dispensed to the appellant. Mr. Saxena submits that the statements of these witnesses recorded in the departmental proceedings per se cannot be read in evidence by the Court, unless the said witnesses are put those statements, and they are confronted therewith. That is why they have only been marked before the trial court, and not exhibited as noticed above.
18. Mr. Saxena has placed reliance on the following decisions in support of his submission that this Court should allow the present application for recording of further evidence of the said PWs, viz. Jamatraj Kewalji Govani Vs. State of Mharashtra AIR 1968 Supreme Court 178, followed in Rajendra Prasad Vs. Narcotic Cell through its Officer-in-charge, Delhi 1999 Crl.L.J. 3529 and also in Rama Paswan and Ors. Vs. State of Jharkhand 2007 Crl.L.J. 2750. He submits that mistake of counsel should not mar the prospects of the accused.
19. The application is opposed by Ms. Behura, learned counsel for the CBI. She submits that the appellant was well aware of the fact that PW2, PW3 and PW5 had made statements in the first departmental proceedings in his favour and their statements made on oath in Court during the trial were contrary to those statements, yet, the appellant chose not to cross-examine the said witnesses on the said aspect, and did not seek production of the earlier recorded statements in the earlier/ first departmental proceedings as made by these witnesses. Not only that, even when the earlier application i.e. Crl MA No.8205/2005 was moved before this Court to seek recording of additional evidence - primarily to establish the appellant s alibi as well as the signatures of the authority who had exonerated him in the first departmental proceedings, the appellant did not seek production of the said witnesses for further cross-examination. Since then more than ten years have passed. She further submits that the statements made by the said witnesses in the two departmental proceedings do not carry the same weight, even if they are accepted as having been made by them, since they were not made under oath before a Court. She further submits that the possibility of the said witnesses having been influenced by the appellant when they were deposing in the two departmental inquiries cannot be ruled out. With the passage of time, the appellant may have influenced the said witnesses, and that is why he is now seeking their production for further cross-examination by the trial court. In support of her submissions, Ms. Behura has placed reliance on Mishrilal and others Vs. State of M.P. and ors. (2005) 10 SCC 701; Nisar Khan @ Guddu and ors. Vs. State of Uttaranchal (2006) 9 SCC 386 and Amol Singh son of Mool Chand and others Vs. State of M.P. 2007(2) MPLJ 542. She submits that the decision in Jamatraj Kewalji Govani (supra) shows that court was dealing with a situation where, during the stage of trial itself, the question arose with regard to summoning of the witnesses for recording additional evidence. The said case is not relevant as the present application has been moved at the appellate stage. She also submits that the standard of proof required and the nature of departmental proceedings is different from a criminal trial. In this regard, she places reliance on Noida Entrepreneurs Assn. Vs. Noida and Ors. MANU/SC/7023/2007.
20. In Jamatraj Kewalji Govani (supra), the Supreme Court considered the scope of Section 540 of Cr PC, 1898, which reads as follows:
S. 540 : 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 witnesses, or recall and re-examine any parson already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it essential to the just decision of the case.
21. The same is paramateria with Section 311 of Cr PC, 1973. The Supreme Court observed that the said section confers wide discretion on the Court to act as the exigencies of the justice require. The Supreme Court also took note of Section 165 of the Evidence Act and observed that Section 540 of Cr PC, 1898 and Section 165 of the Evidence Act confer jurisdiction on the Judge to act in the aid of justice. It was argued before the Supreme Court that the power conferred by Section 540 on the Court could not be invoked since the trial had gone through various stages.
22. The Supreme Court rejected the said submission and other submissions while observing that Section 540 is intended to be wide in its scope. It was held that there was no limitation on the power of the Court arising from the stage at which the trial may be reached, provided the Court is bonafide of the opinion that for the just decision of the case, step must be taken. The Supreme Court in para 14 of this decision observed as follows:
14. It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and, obligation of the Court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction.
23. Thus, it is the duty and obligation of the Court to invoke section 311 of Cr PC in case it is so considered necessary to arrive at a just decision of the case. Jamatraj Kewalji Govani (supra) was followed by the Supreme Court in Rajender Prasad (supra), which was a case under Section 311 Cr PC, 1973.
24. The Supreme Court in Rama Paswan (supra) observed that 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 valuable evidence on record or leaving ambiguity in the statement of 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. The said section applies to all proceedings, inquiries and trial under the Code and empowers the Magistrate to issue summons to any witness at any stage of proceedings, trial or inquiry. The discretion conferred on the Court is to be exercised judiciously considering the wide power that it vests with the Court.
25. In view of the aforesaid, the aspect that needs consideration is whether the just decision of the case demands that PW-2, PW-3 and PW-5 be summoned for further cross examination in the factual background taken note of herein above. It is the case of the appellant that the said witnesses had appeared in a first departmental inquiry and had made their statements exonerating the appellant. These statements were not before a Court and were not made while under oath. However, in case they were so made as submitted by the appellant (the statements were produced before the Trial Court and marked X1 to X6), it cannot be disputed that the same were material to the defence of the accused/ appellant as they would be relevant facts. If the said statements made in the first departmental inquiry by PW-2, PW-3 and PW-5 were indeed made by them, they would have to explain the circumstances in which they were so made, and the circumstances in which they deposed differently before the Trial Court when they were produced as prosecution witnesses. The conviction of the appellant is undoubtedly premised on the testimonies of PW-2, PW-3 and PW-5. Thus, it certainly cannot be said that the examination of the said three witnesses in relation to their earlier alleged statements made during the first departmental inquiry would not be necessary for the just decision of the case.
26. The submission of Ms. Behura that the Supreme Court in Jamatraj Kewalji Govani (supra) was dealing with a situation where section 540 Cr PC, 1898 had been invoked during the course of the trial itself, whereas the present application has been moved before the Appellate Court, has no merit. This is for the reason that section 311 Cr PC per se does not state that the said provision would have no application at the appellate stage. Moreover, the appeal is a continuation of the proceedings and the Appellate Court may record additional evidence either on its own, or may require the Trial Court to record the same. Even in the present case, the earlier application of the appellant/ accused under the same provision was allowed on 22.10.2005. While passing the said order, this Court observed:
The law is well-settled that the Appellate Court has unbridled powers to order re-trial or direct recording of additional evidence if it is satisfied that the additional evidence is essential to promote justice and prevent miscarriage of justice. The Courts do not exist merely for disposal of cases but are established for dispensing justice. The bottom-line is that the Courts must ensure that there is no failure of justice. Ordinarily in appeal, the Appellate Courts do not permit additional evidence for the reason that the parties come before the Appellate Court after Trial in which they get sufficient opportunity to lead evidence. However, in case the Appellate Court is satisfied that for some reason, a party has not been able to adduce evidence which is material and may have substantial bearing on the outcome of the matter, the directions to record additional evidence must be issued to prevent failure of justice. However, such direction should be issued only in exceptional cases and sparingly. The main consideration for adopting this course has to be that the ends of justice have to be achieved and there should be no failure of justice. The carelessness or negligence of a counsel or ignorance of an accused do not stand in the way of the Appellate Court while considering such a request. Procedural blockades cannot obstruct the flow of stream justice which has to be kept flowing, unpolluted and uninterrupted .
27. So far as the decisions relied upon by Ms. Behura are concerned, in my view, the same may not be relevant and applicable in the present factual matrix. In Mishrilal (supra), the Supreme Court was hearing the appeal of a convict found guilty of the offence punishable under section 302 read with section 149 IPC. There were four eye witnesses, namely, PW-1 to PW-4. The Sessions Court had relied on the evidence of PW-1 to PW-3 and the said evidence was also accepted by the High Court to uphold the conviction of the appellants. The appellants assailed their conviction by attacking the evidence of PW-2. PW-2 had been examined by the Sessions Court on 06.02.1991 and was cross examined on the same day by the defence counsel. Thereafter the accused persons moved the application and PW-2 was recalled. He was again examined and cross examined on 31.07.1991. He was so recalled for re-examination and cross examination, because in respect of some of the accused who were minors, he had been examined as a witness before the Juvenile Court where he gave evidence to the effect that he was not aware of the persons who had attacked him and on hearing the voice of the assailants, he assumed that they were some banjaras. Upon PW-2 being recalled, he was confronted with his evidence which he had given later before the Juvenile Court on the basis of which the accused persons were acquitted of the charge under section 307 IPC. The Supreme Court, inter alia, held as follows:
6. In our opinion, the procedure adopted by the Sessions Judge was not strictly in accordance with law. 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 he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently. A witness could be confronted only with a previous statement made by him. At the time of examination of PW 2 Mokam Singh on 6.2.1991, there was no such previous statement and the defence counsel did not confront him with any statement alleged to have been made previously. This witness must have given some other version before the Juvenile Court for extraneous reasons and he should not have been given a further opportunity at a later stage to completely efface the evidence already given by him under oath. The courts have to follow the procedures strictly and cannot allow a witness to escape the legal action for giving false evidence before the court on mere explanation that he had given it under the pressure of the police or some other reason. Whenever the witness speaks falsehood in the court, and it is proved satisfactorily, the court should take a serious action against such witnesses.
28. Thus, it would be seen that the Supreme Court did not approve of the procedure adopted by the Sessions Judge in recalling and re-examining the witness on the basis of the evidence led by him in subsequent judicial proceedings, merely because he had given inconsistent statement subsequently. The Supreme Court observed that the witness could be confronted only with a previous statement made by him. At the time of his examination on 06.02.1991 before the Trial Court, there was no previous statement of PW-2 with which he could be confronted. However, in the present case, it appears that PW-2, PW-3 and PW-5 gave their statements, though not on oath, in the first departmental proceedings prior to their depositions in Court. From this decision, it follows that the said witnesses PW-2, PW-3 and PW-5 may be recalled for further examination and cross examination in relation to their alleged earlier statements which they may have made during the first departmental inquiry, but they cannot be examined qua their statements made during the second departmental inquiry initiated in 2010 i.e. much after they had given their depositions in Court.
29. Nisar Khan (supra) is a case where the Supreme Court held that the prosecution witnesses, who had complained of being threatened and intimidated by the accused, had turned hostile. PW-1 and PW-2, who were the eye witnesses to the occurrence had been examined and cross examined and discharged on 04.01.2001. They were, however, recalled on 07.01.2002 and re-examined by the defence and on that day they turned hostile and resiled from the previous statement. The Supreme Court, however, did not accept the subsequent statements made by these witnesses upon their recall. Thus, Nisar Khan (supra) is an instance where the witnesses, upon being recalled, had turned hostile and the Supreme Court, upon appreciation of evidence, did not accept their subsequent testimonies. This decision, therefore, does not advance the proposition that the appellant is precluded from seeking recall of the three witnesses in question for their further examination and cross examination.
30. In Amol Singh (supra), the Madhya Pradesh High Court held that recall of witnesses for reexamination is not mandated in every case. The satisfaction of the Court is paramount, which ought to be based on the interest of justice. There could be no quarrel with the aforesaid proposition.
31. Reliance placed on Noida Entrepreneurs Assn. (supra) is of no avail. The fact that departmental proceedings and prosecution are different and distinct is well established. This Court, at this stage, is not concerned with the matter of appreciation of evidence that may be recorded if this application were to be allowed and PW-2, PW-3 and PW-5 are further examined. It would be premature for this Court, at this stage, to comment on the worth of the evidence that may be recorded if the application is allowed. No doubt, at the appropriate stage, the aspects such as the nature of the departmental proceedings viz-a-viz the criminal trial, and the sanctity attached to a statement made without oath in a departmental inquiry for the purpose of a criminal trial, would be examined. Presently, this Court is only considering the aspect whether the present application under section 311 of Cr PC should be allowed on the touchstone that the same is necessary to arrive at a just decision of the case.
32. In view of the aforesaid discussion and for the reasons indicated herein above, I am of the view that even though the appellant could have cross examined PW-2, PW-3 and PW-5 at the relevant time in relation to their alleged earlier statements made in the first departmental inquiry, and even though the appellant could and ought to have asked for their being recalled for their further examination and re-examination when he moved his earlier application under section 311 Cr PC i.e. Crl MC No.8205/2005, his failure to do so would not come in the way of this Court, since it appears to this Court that the examination and cross examination of the said witnesses is essential to arrive at a just decision of the case. In my view, a hyper technical approach should be eschewed since the matter concerns the liberty of the appellant. Accordingly, the application is allowed.
33. The Trial Court is directed to examine the three witnesses, namely, PW2-Raj Kumar, PW3-Satpal, and PW5-Inspector CBI R.V.S.Lohmor. The appellant shall, however, not seek or be granted any undue adjournment by the Trial Court, and the further evidence of the said witnesses shall be recorded without any delay whatsoever.
34. It is made clear that this Court has not appreciated the evidence on record, much less the evidence sought to be brought on record, and any observations made in this order has been made only for the purpose of deciding the present application.