2001 JTR(SC) 1624
2002 1 AICLR 189 ; 2002 AIR(Jhar)(R) 42 ; 2002 AIR(SC) 270 ; 2001 AIR(SCW) 4984 ; 2002 1 ALD(Cri)(SC) 264 ; 2002 AllMR(Cri)(SC) 740 ; 2002 1 APLJ 41 ; 2002 1 BBCJ(SC) 159 ; 2002 1 BLJR 288 ; 2002 4 CCR(SC) 340 ; 2002 1 CHN(SC) 104 ; 2002 1 Crimes(SC) 197 ; 2002 CrLJ 568 ; 2002 1 EastCrC(SC) 81 ; 2001 10 JT 111 ; 2001 8 Scale 320 ; 2002 1 SCC 655 ; 2002 SCC(Cri) 230 ; 2001 SCR 371 ; 2002 KHC 1111 ; 2001 8 Supreme 513
2001(8) Supreme 513
SUPREME COURT OF INDIA
(From Patna High Court)
M.B. Shah, B.N. Agrawal and Arijit Pasayat, JJ.
Shailendra Kumar -Appellant
versus
State of Bihar & Ors. -Respondents
Criminal Appeal No. 1218 of 2001
(Arising out of SLP (Crl.) No. 3184 of 2000)
Decided on 28-11-2001
Counsel for the Parties :
For the Appellant : Ms. Kamakshi S. Mehlwal, Advocate (NP).
For the Respondents : B.B. Singh and Shiva Pujan Singh, Advocates.
IMPORTANT POINT
In a murder trial it is sordid and repulsive matter that without informing the Police Station Officer-in-charge, the matters are proceeded by the Court and by the APP and tried to be disposed of as if the prosecution has not led any evidence. Prosecution cannot be frustrated by such unjust methods and victims of the crime cannot be left in lurch.
Act
Referred
:CRIMINAL PROCEDURE CODE : S.309, S.311
INDIAN PENAL CODE : S.148, S.149, S.302, S.323, S.449
(A) The Indian Penal Code sections 148, 149, 323, 449, and 302 read with the Criminal Procedure Code sections 309, 311, and 449 govern the procedural and substantive legal framework for trying an offense of murder committed in the context of an unlawful assembly. Section 148 addresses the liability for acts done by members of an unlawful assembly armed with deadly weapons, section 149 covers liability for acts done by any member of the assembly in prosecution of the common object, section 323 deals with punishment for voluntarily causing hurt, section 449 relates to acts done with intent to cause death or such harm as is likely to cause death, and section 302 prescribes punishment for murder. The Code of Criminal Procedure section 309 mandates the trial to proceed expeditiously, section 311 empowers the court to summon material witnesses or examine persons not summoned if their evidence appears essential to a just decision, and section 302 ensures the court can issue summons to the investigating officer to secure their presence at trial. These provisions are invoked to ensure that the prosecution is not frustrated, that witnesses are made available, and that the trial proceeds fairly and in accordance with law.
(B) Key legal principles include that a criminal court must ensure the presence of the investigating officer at trial, must issue summons or notices to secure witness attendance, cannot allow the prosecution to be frustrated by unjustified adjournment strategies, and must proceed with the trial on a day-to-day basis adhering to the Code of Criminal Procedure. The court also held that it is essential to examine material witnesses even if earlier orders mistakenly closed the prosecution case, and that the function of a criminal court is to administer justice and not to count errors by the parties.
Facts of the case:
An appeal was filed against an order confirming the closure of prosecution evidence in a murder case where the appellant's mother was allegedly killed by members of an unlawful assembly armed with lethal weapons. The FIR was lodged in 1991, charges were framed in 1993 under Sections 148, 149, 323, 449, and 302 IPC, and the prosecution evidence was declared closed after examining a few formal witnesses. Subsequent applications to recall the order and to examine witnesses were rejected, leading to the present appeal challenging the illegality of the earlier orders.
Findings of Court:
The court found that it was improper to proceed with the trial without ensuring the presence of the investigating officer and without making adequate arrangements to secure witness attendance. It held that the prosecution cannot be frustrated by such methods and that the trial must proceed strictly in accordance with the Code of Criminal Procedure. The earlier orders were set aside, and the application under Section 311 Cr.P.C. was allowed.
Issues:
The primary issues were whether the prosecution evidence could be lawfully closed, whether the court could recall its earlier order setting aside the closure, and whether the trial could proceed without the investigating officer and without adequate arrangements to secure witness attendance.
Ratio Decidendi:
The court held that Section 311 Cr.P.C. confers wide power on the court to summon material witnesses and examine persons whose evidence is essential to a just decision, and that the court must ensure the presence of the investigating officer and witnesses to prevent the prosecution from being frustrated. The function of the criminal court is to administer justice, not to count errors, and it must proceed on a day-to-day basis to ensure a fair trial.
Result:
The appeal was allowed, the impugned order was set aside, and the court directed the Sessions Judge to proceed daily with the trial and to secure the presence of witnesses and the investigating officer.
(A) The Indian Penal Code sections 148, 149, 323, 449, and 302 read with the Criminal Procedure Code sections 309, 311, and 449 govern the procedural and substantive legal framework for trying an offense of murder committed in the context of an unlawful assembly. Section 148 addresses the liability for acts done by members of an unlawful assembly armed with deadly weapons, section 149 covers liability for acts done by any member of the assembly in prosecution of the common object, section 323 deals with punishment for voluntarily causing hurt, section 449 relates to acts done with intent to cause death or such harm as is likely to cause death, and section 302 prescribes punishment for murder. The Code of Criminal Procedure section 309 mandates the trial to proceed expeditiously, section 311 empowers the court to summon material witnesses or examine persons not summoned if their evidence appears essential to a just decision, and section 302 ensures the court can issue summons to the investigating officer to secure their presence at trial. These provisions are invoked to ensure that the prosecution is not frustrated, that witnesses are made available, and that the trial proceeds fairly and in accordance with law.
(B) Key legal principles include that a criminal court must ensure the presence of the investigating officer at trial, must issue summons or notices to secure witness attendance, cannot allow the prosecution to be frustrated by unjustified adjournment strategies, and must proceed with the trial on a day-to-day basis adhering to the Code of Criminal Procedure. The court also held that it is essential to examine material witnesses even if earlier orders mistakenly closed the prosecution case, and that the function of a criminal court is to administer justice and not to count errors by the parties.
Facts of the case:
An appeal was filed against an order confirming the closure of prosecution evidence in a murder case where the appellant's mother was allegedly killed by members of an unlawful assembly armed with lethal weapons. The FIR was lodged in 1991, charges were framed in 1993 under Sections 148, 149, 323, 449, and 302 IPC, and the prosecution evidence was declared closed after examining a few formal witnesses. Subsequent applications to recall the order and to examine witnesses were rejected, leading to the present appeal challenging the illegality of the earlier orders.
Findings of Court:
The court found that it was improper to proceed with the trial without ensuring the presence of the investigating officer and without making adequate arrangements to secure witness attendance. It held that the prosecution cannot be frustrated by such methods and that the trial must proceed strictly in accordance with the Code of Criminal Procedure. The earlier orders were set aside, and the application under Section 311 Cr.P.C. was allowed.
Issues:
The primary issues were whether the prosecution evidence could be lawfully closed, whether the court could recall its earlier order setting aside the closure, and whether the trial could proceed without the investigating officer and without adequate arrangements to secure witness attendance.
Ratio Decidendi:
The court held that Section 311 Cr.P.C. confers wide power on the court to summon material witnesses and examine persons whose evidence is essential to a just decision, and that the court must ensure the presence of the investigating officer and witnesses to prevent the prosecution from being frustrated. The function of the criminal court is to administer justice, not to count errors, and it must proceed on a day-to-day basis to ensure a fair trial.
Result:
The appeal was allowed, the impugned order was set aside, and the court directed the Sessions Judge to proceed daily with the trial and to secure the presence of witnesses and the investigating officer.
JUDGMENT
Shah, J.-Leave granted.
2. This appeal has been filed against the judgment and order dated 3.7.2000 passed by the High Court of Patna in Crl. Misc. No. 16453 of 2000 confirming the order dated 2.6.2000 passed by the Additional Sessions Judge, Gaya.
3. It is the contention of the appellant that his mother was done to death by the accused by forming unlawful assembly who were armed with lethal weapons. FIR was lodged with Bodh Gaya police station on 9.10.1991 against 15 named accused and 25 to 30 unknown persons. On 27.8.1993 the case was taken up for trial by the 5th Additional Sessions Judge, Gaya in Sessions Trial No. 24 of 1993. Charges were framed against the accused persons on 27.8.1993 for the offence punishable under Sections 148, 149, 323, 449 and 302 IPC.
4. After examining two or three formal witnesses, the learned Sessions Judge closed the evidence of prosecution on the ground that APP has not made any prayer either oral or written for adjournment or for examining other witnesses. The prosecution evidence was declared to have been closed and the matter was fixed for recording the statement of accused.
5. Thereafter, the prosecution filed an application for transferring the case from the Court of 5th Addl. Sessions Judge. However, the 5th Addl. Sessions Judge was superannuated and the case was transferred to 2nd Addl. Sessions Judge, Gaya, who by his order dated 20.9.1995 was pleased to recall order dated 3.9.1994 passed by the 5th Addl. Sessions Judge, Gaya by which the prosecution evidence was directed to be closed. He also directed the APP to produce the witnesses on the next date of hearing.
6. That order was challenged by the accused by filing Criminal Revision No. 530 of 1995 before the High Court of Patna. The High Court vide its order dated 1.2.2000 allowed the revision application on the ground that "it is well settled that criminal court can not recall his earlier order".
7. Again on 12.5.2000 the State filed an application under Section 311 of Code of Criminal Procedure before the Addl. Sessions Judge, Gaya for examining the witnesses. That application was rejected by order 2.6.2000 on the ground that application by the State has no meaning in view of the order passed by the High Court in revision application. At the time of hearing of that application, APP remained absent. Thereafter, the appellant-informant preferred Criminal Misc. No. 16453 of 2000 before the High Court. That application was also dismissed by impugned judgment on the ground that it was not proper for the High Court to interfere with the order passed by the Sessions Judge. That order is challenged by filing this appeal, wherein it has been contended that the previous order passed by the High Court on dated 1.2.2000 is on the face of it illegal, erroneous and against the provisions of Cr.P.C.
8. In counter filed by officer-in-charge of Bodh Gaya Police Station, District Gaya, it has been pointed out that the concerned Investigating Officers, at present, are not posted at Bodh Gaya Police Station and even in other police stations within the District of Gaya. He specifically states, "it is submitted that he was never served with notice or summon or in no way communicated by the Court of law or any other agency including A.P.P. to bring the witness up to the trial court." He also stated that after perusing the entire relevant record and registers at the office of Bodh Gaya police station, Gaya he has not found any summon or any sort of notice concerning the case under reference received by his office. In paragraph no. 9, he has clarified that after investigation it was found that summons were issued against witnesses No.1 to 3 through Nazir of Civil Court, Gaya but surprisingly enough the said summons were never moved to the police station Bodh Gaya. It is his further say that if opportunity is given, the witnesses named in the charge-sheet could be brought before the court either by issue of notices or summons and he will make his best efforts to produce the witnesses before the concerned court within reasonable time.
9. In our view, in a murder trial it is sordid and repulsive matter that without informing the police station officer-in-charge, the matters are proceeded by the Court and by the APP and tried to be disposed of as if the prosecution has not led any evidence. From the facts stated above, it appears that accused wants to frustrate the prosecution by unjustified means and it appears that by one way or the other the Addl. Sessions Judge as well as the APP have not taken any interest in discharge of their duties. It was the duty of the Sessions Judge to issue summons to the investigating officer if he failed to remain present at the time of trial of the case. The presence of investigating officer at the time of trial is must. It is his duty to keep the witnesses present. If there is failure on part of any witness to remain present, it is the duty of the Court to take appropriate action including issuance of bailable/non-bailable warrants as the case may be. It should be well understood that prosecution cannot be frustrated by such methods and victims of the crime cannot be left in lurch.
10. Learned counsel for the respondent accused however submitted that in this case there is no question of referring to Section 311 Cr.P.C. in view of earlier order dated 1.2.2000 passed by the High Court setting aside the order dated 20.9.1995 passed by the Additional Sessions Judge recalling the order dated 3.9.1994 by which the prosecution evidence was declared to have been closed. This submission is without any substance. Section 311 empowers the Court to summon material witnesses though not summoned as witness and to examine or recall and re-examine if their evidence appears to it to be essential to the just decision of the case. It reads thus:
"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."
11. Bare reading of the aforesaid section reveals that it is of very wide amplitude and if there is any negligence, latches or mistakes by not examining material witnesses, the Courts function to render just decision by examining such witnesses at any stage is not, in any way, impaired. This Court in Rajendra Prasad vs. Narcotic Cell, [(1999) 6 SCC 110] observed, "After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better".
12. In this view of the matter, appeal is allowed. Impugned order passed by the High Court confirming the order dated 2-6-2000 of Additional Sessions Judge, Gaya is set aside. Application filed by the State under Section 311 Cr.P.C. is allowed. The Sessions Judge is directed to proceed with the matter on day to day basis by strictly adhering to Section 309 Cr.P.C. and directing the officer-in-charge of police station Bodh Gaya to keep witnesses present in the court for their examination.
(N.K.R.) Appeal allowed accordingly.
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Parallel Citations of other Journals :
Shailendra Kumar v. State of Bihar, 2001(8) Supreme 513
00040