Thursday, 16 June 2016

What factors should be considered by court while deciding application for examination of witness U/S 313 of CRPC?

Considering the peculiar facts of the case, it cannot be said that the evidence of the respondent No. 2 is not essential for the just decision of the case. In the present case, the respondent No. 2 was the intended victim, his statements were recorded under Section 161 Cr.P.C. where he has given the possible motive for the applicant No. 1 and others for conspiring to kill him. In fact, the respondent No. 2 was ready to depose as a prosecution witness and had showed his readiness and willingness and in the facts of the case, it cannot be said that either, the delay or his conduct disentitles him from being examined as a witness under Section 311 Cr.P.C. Under Section 311 Cr.P.C., for the examination of a person as a witness, what is relevant for the Court to examine, is only the admissibility or relevance of the witness concerned and not the probative value of the statement. It is not for any Court to prejudge the evidence of witnesses sought to be examined and examination of a witness cannot be refused on the ground that the evidence of that witness would not be conclusive. As far as the evidentiary value of the evidence is concerned, only, and only once the evidence has been laid before it and brought on record, that the Court will consider the same. It may be noted, that the Courts exist to give justice and if the Court is bonafide of the opinion that the examination of the intended victim under Section 311 Cr.P.C. is essential to the 'just decision of the case', then the witness ought to be examined. The probative value of his evidence can be determined and considered after the same is recorded. A Court has a statutory duty to perform, a duty to determine the truth and to render a just decision, a hallmark of a criminal trial.
IN THE HIGH COURT OF BOMBAY
Criminal Application No. 598 of 2014
Decided On: 10.07.2014
Appellants: Kirti V. Ambani
Vs.
Respondent: Union of India
Hon'ble Judges/Coram:Revati Mohite Dere, J.



1. Heard Counsel for the parties.
2. By this application, the applicant has impugned the order dated 30th April, 2014 passed by the learned Special Judge, CBI, Greater Mumbai below Misc. Application-Exhibit 245. The said Application being Exhibit 245 was preferred by the respondent No. 2 under Section 311 of the Code of Criminal Procedure Code, 1973 ('Cr.P.C.') praying therein, for recording of his evidence as he was a material witness in the case and as the same was essential for the just decision of the case.
3. A few facts as are necessary to decide the present application are as under:
On 31st July, 1989 on the basis of source information, an FIR came to be registered by the DCB, CID, Mumbai. The said information was to the effect that there was a conspiracy to kill the respondent No. 2. Pursuant to the said information, C.R. No. 210/1989 came to be registered with the DCB CID, Mumbai as against the applicant and others, alleging offences punishable under Section 120B r/w 302 of the Indian Penal Code ('IPC') and Section 115 of the IPC. On 2nd August, 1989, the Government of Maharashtra issued a Notification under Section 6 of the Delhi Special Police Establishment Act, 1946 ('DSPE Act') and consented to the CBI taking over of the investigation in the said case and on 4th August, 1989, the Union of India by its Notification issued under Section 5 of the DSPE Act, directed the CBI to take over the investigation. On 6th August, 1989, the investigation of C.R. No. 210/1989 registered with DCB CID, Mumbai, came to be transferred to the CBI i.e. the respondent No. 1 and the case came to be registered as R.C. 16/SCB/CBI/1989-Bombay. After investigation, the CBI filed a charge-sheet as against the applicant and three others on 15th October, 1990, for the alleged offences punishable under Section 120B r/w Section 302 of the IPC, Section 115 of IPC and under Sections 25 and 27 of the Arms Act.
During the course of investigation, two statements of the respondent No. 2 came to be recorded under Section 161 Cr.P.C., the first statement was recorded on 4th August, 1989 by the DCB CID, Mumbai and the second statement came to be recorded by the CBI on 20th December, 1989. On 15th July, 2003, charge came to be framed as against four persons, including the applicant alleging the aforesaid offences. The accused pleaded not guilty and claimed to be tried.
Thereafter, the CBI examined its first witness on 23rd September, 2003 and the last witness PW 38 on 18th December, 2013. Thereafter, the prosecution filed closure pursis in the said case. On 20th January, 2014, the statement of the accused came to be recorded under Section 313 Cr.P.C. and on 24th February, 2014, the matter was posted for final arguments in the said case.
On 17th February, 2014 i.e. prior to the date when the matter was posted for final arguments, respondent No. 2 filed an application under Section 311 Cr.P.C. being Exhibit 245 praying therein, that the learned Judge be pleased to exercise his powers under Section 311 Cr.P.C. by examining him as a material witness, for the just decision in the case. The said application was resisted by the present applicant by filing written submissions in the said application. The prosecution i.e. CBI also filed its reply to the said application. It was stated in the reply filed by CBI, that as far as the prosecution was concerned, the prosecution would adhere to the orders of the Court and that they did not have any objection for examining the respondent No. 2, if so directed by the Court.
The learned Judge after hearing the parties, was pleased vide order dated 30th April, 2014 to allow the said application preferred by the respondent No. 2 and accordingly, prosecution was given liberty to examine the respondent No. 2 as a prosecution witness, if they so desire or else the respondent No. 2 was to be examined as a Court witness.
4. Mr. Desai, learned Senior Counsel questioned the invocation of Section 311 Cr.P.C. by the Trial Court in the facts of the case. He submitted that the Trial Court ought to have considered the background of the case and conduct of the respondent No. 2, before allowing the said application preferred by the respondent No. 2. According to Mr. Desai, respondent No. 2 had full knowledge of the case right from 1989, as he had participated in a petition filed by one Prof. Ramdas K. Amin being Writ Petition (Civil) No. 392 of 1989, as an intervener in the Apex Court and was watching the present proceedings for almost 24 years through his Advocate. He submitted that from 2009 to 2013, when the evidence of the witnesses was being recorded, despite efforts being made by the CBI to secure his presence, the respondent No. 2's presence could not be secured. He submitted that it was only at the fag end, before the case was posted for final arguments that a motivated, calculated and vexatious application came to be preferred by the respondent No. 2. According to Mr. Desai, the fact that it was a motivated and calculated application filed for extraneous reasons was clearly evident from paragraph Nos. 1, 3 and 6 of the application being Exhibit 245, where a wider conspiracy is alleged. He submits that the purport and intent of the respondent No. 2 is writ large on the face of the application, which certainly is not relevant to an application which is preferred under Section 311 Cr.P.C. He, therefore, submits that considering the contents of the application, it certainly cannot be said that the application was preferred for arriving at a 'just decision' of the case. According to him, it was clearly a motivated application which had nothing to do with the 'just decision' of the case and that it was made with the sole intent of filling up the lacuna in the prosecution case and that the application is nothing but a disguise for retrial of the case. The other grievance of Mr. Desai is that the trial will be further delayed, if the respondent No. 2 is examined as a witness under Section 311 Cr.P.C., resulting in serious prejudice to the applicant, who is facing prosecution for the last 24 years. He submitted that by allowing the application preferred by the respondent No. 2, at the fag end of the trial, the same has caused not only serious prejudice, but also serious disadvantage to the applicant, thereby impairing the applicant's right to a fair and speedy trial, which is inherent in Article 21 of the Constitution. He submitted that both these rights i.e. of a fair trial and a speedy trial would be jeopardized, if the application under Section 311 is allowed, inasmuch as, the same would not only cause serious disadvantage to the accused, by giving the prosecution an opportunity to fill up the lacuna in the case, but in a sense, the application is a disguise for a retrial of the case. He submitted that the right which has accrued to the accused and which enures to the accused in a trial, cannot be defeated by the respondent No. 2, by filing an application under Section 311 Cr.P.C., at the fag end of the trial. He submitted that by this application preferred under Section 311, the accused being clearly disadvantaged, the same certainly cannot be permitted in the facts of the case.
5. Mr. Desai, the learned Senior Counsel for the applicant submitted that with regard to motive, the prosecution has examined PW 38 Kuppuswamy and that the said witness has deposed with regard to the alleged motive and therefore, if the application under Section 311 Cr.P.C. is permitted and the respondent No. 2 is examined by the prosecution, on the point of alleged motive, the same would clearly amount to filling up the lacuna in the prosecution case, which is impermissible in law. According to him, PW 38 had personal knowledge of the rivalry and has deposed with regard to the same. He further submitted that the application under Section 311 preferred by the respondent No. 2 is not an application for proving alleged motive, but to prove a wider conspiracy and the same cannot be permitted, as it is an application claiming wider conspiracy and is an application in disguise, for a retrial. He further submitted that a perusal of the two statements of the respondent No. 2 recorded under Section 161 Cr.P.C. would reveal that the same merely discloses some information to the police, with regard to certain facts, to enable the police to find out the motive. According to him, even otherwise, the statements recorded under Section 161 Cr.P.C. of the respondent No. 2 do not in any way indicate motive for conspiracy and that the said statements are really speculative and therefore the evidence of respondent No. 2 cannot be termed as 'evidence' and as such respondent No. 2 is not a competent witness to be examined under Section 311 Cr.P.C. According to him, the tenor of the application is such that there is an apprehension that by alleging 'wider conspiracy', an application under Section 319 of the Cr.P.C. may be preferred, thereby further delaying the trial and thus clearly infringing the applicant's right to a speedy trial under Article 21. Mr. Desai submitted that there is no dispute about the fact that the provisions of Section 311 Cr.P.C. can be invoked at any stage of the trial, even prior to the pronouncement of the Judgment. However, according to him, the said powers are to be utilised by the Courts with great care and circumspection and in exceptional circumstances, in cases where the Court feels that it is necessary to recall or examine a person for the just decision of the case. He submitted that in the facts of the present case, the delay and conduct of the respondent No. 2 clearly disentitles him from being permitted to be examined as a witness under Section 311 Cr.P.C.
6. He submitted that in any event, it is well settled that if the basic foundation is proved by the prosecution, then motive is inconsequential. Conversely, if otherwise prosecution has not proved its case, merely because motive is proved, accused cannot be convicted. He relied on the following Judgments under Section 311 Cr.P.C. to buttress his submission:
MANU/SC/0483/2013 : (2013) 5 SCC 741-Natasha Singh Vs. Central Bureau of Investigation; MANU/SC/0663/2013 : (2013) 14 SCC 461-Rajaram Prasad Yadav Vs. State of Bihar & Anr.; MANU/SC/0318/1991 : 1991 Supp (1) SCC 271-Mohanlal Shamji Soni Vs. Union of India & Anr.; MANU/SC/3471/2006 : (2006) 7 SCC 529-U.T. Of Dadra & Nagar Haveli Vs. Fatehsinh Mohansinh Chauhan; MANU/MH/0144/1995 : (1996) 3 Bom. CR 292-R.N. Kakkar Vs. Hanif Gafoor Naviwala & Ors.; MANU/SC/0028/1953 : AIR 1953 SC 293-Basir-Ul-Huq & Ors. Vs. State of West Bengal; MANU/SC/0103/2003 : (2003) 3 SCC 153-State of Punjab Vs. Sucha Singh & Ors; 1999 SCC (Cri.) 33-Surinder Kumar Vs. State of Punjab; MANU/SC/0301/1990 : (1990) 4 SCC 389-State of UP vs. Motiram & Anr.; MANU/SC/0328/2002 : (2002) 4 SCC 578-P. Ramchandra Rao vs. State of Karnataka; MANU/SC/7818/2008 : (2008) 16 SCC 117-Pankaj Kumar Vs. State of Maharashtra & Ors.; MANU/MH/0609/2009 : 2009 SCC (Bom.) 1021-Rajni Vishram Patil Vs. Central Bureau of Investigation & Ors. and 2012 SCC (Bom.) 1593-Central Bureau of Investigation Vs. Raju Chintaman Sonawane & Ors. Mr. Desai, in particular, relied on the following paras of the afore stated Judgments;
(I) In Natasha Singh (supra), the Apex Court has held as under:
14. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application Under Section 311 Code of Criminal Procedure must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party.
(II) In Mohanlal Shamji Soni (supra), the Supreme Court has held as under:
18. The next important question is whether Section gives the court carte-blanche drawing no underlying principle in the exercise of the extra-ordinary power and whether the said Section is unguided, uncontrolled and uncanalised. Though (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or the cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties.
(III) In U.T. Of Dadra & Nagar Haveli (supra), it has been held as under:
11. In Mohanlal Shamji Soni v. Union of India and Anr. MANU/SC/0318/1991 : 1991CriLJ1521 it was observed that it is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. It is the duty of a Court not only to do justice but also to ensure that justice is being done. It was further held that the second part of the Section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case. It was emphasized that power is circumscribed by the principle that underlines Section 311 Cr.P.C., namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Further, that the power must be used judicially and not capriciously or arbitrarily. It was further observed that evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties and the discretion of the Court must obviously be dictated by exigency of the situation and fair play and good sense appear to be the safe guides and that only the requirement of justice command the examination of any person which would depend on the facts and circumstances of each case........
(IV) Similarly, in R.N. Kakkar (supra), the Bombay High Court has held as follows:
11. In my view, the power of the Court under section 311 of the Criminal Procedure Code is not an unqualified, unbridled and unfettered power. The section itself qualifies or puts fetters on the powers of the court when it provides 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.
12. In every case, while exercising power under this section, the Court has to examine the question whether the evidence of the person sought to be summoned and examined or recalled or reexamined "appears to it" to be essential to the just decision of the case." If the answer to this question is in the affirmative, then section 311 of the Criminal Procedure Code casts a mandatory duty on the court in terms "and the Court shall summon and examine or recall and reexamine any such person.
14. It needs to be emphasised that although the amplitude of the powers vested in a Court under section 311 of the Criminal Procedure Code, 1973 is very wide, the object of exercise of such powers is not to enable the prosecution to adduce evidence which would plug-in the holes in its case, for such an exercise of power would be defeating the very object for which it has been bestowed on the court, namely the just decision of the case. This would be a capricious exercise of power by the Court. It is a trite in law that no party can take advantage of its own wrong and if the powers are exercised under this section to enable the prosecution to plug-in the holes in its case, the aforesaid principle would be given a go-bye.
15. The power under section 311 of the Criminal Procedure Code, 1973 should be exercised by the Courts in rare cases, after the greatest circumspection and only when it is imperative for the just decision of the case. While exercising the power under this section, the Court should bear in mind that the larger the power the higher the circumspection required before exercising the same.
7. Per contra, Mr. Jethmalani, learned Senior Counsel for respondent No. 2 supported the impugned order. He submitted that no delay was occasioned on account of the respondent No. 2 and the same is clearly borne out from the record of the Trial Court. He submitted that the respondent No. 2 cannot be held responsible for the delay of 24 years in the trial. He further submitted that the respondent No. 2 has been an NRI for the last ten years and at no point of time, due to the non-appearance of the respondent No. 2, the trial was delayed. He submitted that the first witness summons was served on the respondent No. 2 on 25th August, 2011 for appearance on 14th September, 2011. Thereafter, the case itself came to be adjourned from time to time and the respondent No. 2 was given a date of 3rd April, 2013 for recording of his evidence. Mr. Jethmalani submitted that an application was moved by the applicant on 1st April, 2013, expressing the inability of his Advocate to appear on the 3rd April, 2013. He submitted that the respondent No. 2 was ready and willing to give his evidence on 3rd April, 2013, the date on which the case was fixed by the Court for recording his evidence. He submitted that the watching advocate for the respondent No. 2 had given her say on the application for adjournment made by the applicant, that the respondent No. 2 was ready to give his evidence any time between 24th April, 2013 to 4th May, 2013. He submitted that the respondent No. 2 was not aware that the prosecution had closed its evidence by filing a closure pursis, despite the fact, that the respondent No. 2 had expressed his readiness and willingness to depose as a witness in the said case, as he was the intended victim. He submitted that in fact in the year 2012, the respondent No. 2 was even threatened by the CBI with issuance of a non-bailable warrant, but when respondent No. 2 had expressed his readiness and willingness to depose in April, 2013, no steps were taken by the CBI to procure his presence as a prosecution witness. He submitted that the said application preferred by the respondent No. 2, under no circumstances, can be termed as motivated, calculated and vexatious, more particularly, when the respondent No. 2 was the intended victim. He submitted that till this application was filed i.e. Exhibit 245, the applicant had not taken any objection for recording of the evidence of the respondent No. 2 or the relevancy of his evidence and today when the application is allowed, the evidence of respondent No. 2 is sought to be scuttled by opposing the same. He submitted that pursuant to the impugned order dated 30th April, 2014, the respondent No. 2 was to appear before the Trial Court as a witness on 30th June, 2014, and for which respondent No. 2 had come to India, however, instead of proceeding with his examination, the applicant filed this present application in this Court, thereby, delaying the conclusion of the case. He submitted that the respondent No. 2 cannot be held responsible for the delay in the trial, as the delay was due to exigencies beyond his control. In fact, he submitted that the delay can never be said to benefit the victim. As far as motive is concerned, Mr. Jethmalani submitted that a perusal of the 161 statements of the respondent No. 2 show that there was a serious corporate rivalry which had affected the business of Reliance Industries. He submitted that merely because motive is speculative, cannot be a ground for not recording the evidence of the respondent No. 2. Mr. Jethmalani submitted that the evidence of motive can only strengthen the case, in addition to the evidence which has already come on record, in the form of tape recorded conversations, etc. and in any event Section 8 of the Evidence Act cannot be ignored. He submitted that the apprehension of the applicant that 319 Cr.P.C. will be invoked, is unwarranted at this stage, as 311 Cr.P.C. is not a prelude to an application made under Section 319 Cr.P.C. According to Mr. Jethmalani, there appears to be a collusion between the prosecuting agency i.e. the CBI and the accused and that appears to be the main reason for non-examination of the respondent No. 2 by the prosecution.
8. Mr. Makasare, the learned Counsel for the CBI submitted that the CBI would submit to the orders of the Court and would have no objection for examining the respondent No. 2 as a prosecution witness. He, however, submitted that the prosecution had made several attempts to secure the presence of the respondent No. 2 on several occasions, prior to 2012. He submitted that as the watching Advocate of the respondent No. 2 had said that she would bring the witness, they did not take any steps, after 2nd April, 2013 till before the closure of the prosecution case. He submitted that they have examined PW 38 Kuppuswamy, an employee of respondent No. 2 on the point of motive.
9. Heard rival submissions of the parties at length. Perused the record and the impugned order. There can be no dispute about the ratio in the Judgments relied upon by the applicant. In fact, the law relating to Section 311 Cr.P.C.
10. Before adverting to the submissions made by the learned Counsel for the parties and before examining the correctness of the impugned order, it would be relevant to set out Section 311 Cr.P.C.
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. The Apex Court in the case of Rajaram Prasad Yadav (supra) has laid down the guidelines which should be considered by Courts, while exercising jurisdiction under Section 311 Cr.P.C. The guidelines are;
a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?
b) The exercise of the widest discretionary power under Section 311 Code of Criminal Procedure should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.
c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.
d) The exercise of power under Section 311 Code of Criminal Procedure should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
f) The wide discretionary power should be exercised judiciously and not arbitrarily.
g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.
h) The object of Section 311 Code of Criminal Procedure simultaneously imposes a duty on the Court to determine the truth and to render a just decision.
i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.
k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
n) The power under Section 311 Code of Criminal Procedure must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.
12. The Apex Court in the case of Mohanlal Shamji Soni (supra), examined the scope of Section 311 Cr.P.C., and held that it is a cardinal rule of the law of evidence, that the best evidence available must be brought before the Court to prove a fact, or a point in issue. It observed that the Court has a duty to determine the truth, and to render a just decision and that it is the object of Section 311 Cr.P.C., which gives discretion to the Court, at any stage of the inquiry, trial or other proceedings, to summon any person as a witness, though not yet examined as a witness or to recall or re-examine any person, who is expected to be able to throw light upon the matter in dispute, because if the Judgments happen to be rendered on an inchoate, inconclusive and speculative presentation of facts, ends of justice would be defeated.
13. In Rajeswar Prasad Misra v. State of West Bengal & Anr. reported in MANU/SC/0080/1965 : AIR 1965 SC 1887, the Apex Court observed that the Court must examine the facts and circumstances of each case before it, and if it comes to a conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because thee would be a failure of justice without such evidence being considered, then Court must exercise such power.
14. From the perusal of the aforesaid Judgments, what emerges undisputedly is as follows:
(1) The power of the Court under Section 311 Cr.P.C. can be exercised at any stage of the trial even before the pronouncement of the Judgment.
(2) The object and scope of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of the such facts in order to arrive at a just decision of the case. The powers under Section 311 can be exercised by a Court even suo moto, however, the Court must satisfy itself, that it was in fact essential to examine the witness or recall him for further examination, to arrive at a just decision of the case.
(3) The power under Section 311 has to be exercised judiciously.
(4) Powers under Section 311 cannot be exercised to fill up any lacuna in the prosecution case or to cure defects or to cause disadvantage to the accused or serious prejudice to the accused or to give unfair advantage to the opposite party.
(5) Neither can such evidence be received as a disguise for a retrial, so as to change the nature of the case as against any of the party.
(6) Lastly, the said extraordinary power can be exercised only if the evidence that is likely to be tendered by a witness is germane to the issue involved.
15. It cannot be disputed that the duty of a Court is not only to do justice but also to ensure that justice is done. The power under 311 is circumscribed by truth, mainly that the evidence is necessary for a 'just decision of the case' and it is the duty of the Court to determine the truth, and to render a just decision. It is in the background of the settled legal position that the facts of the present case are required to be examined, as to whether the Trial Court has rightly allowed the application of the respondent No. 2 under Section 311 Cr.P.C.
16. The principal ground raised by Mr. Desai, learned Sr. Counsel for the applicant, challenging the invocation of Section 311 Cr.P.C., is that the delayed application made by the respondent No. 2 was calculated, motivated and vexatious on the face of it and his examination as a witness on motive, cannot be said to be necessary for arriving at a just decision of the case. He submitted that the respondent No. 2 despite several summons, had not appeared before the Special Court and therefore, the said application filed at a belated stage would seriously prejudice the right of the applicant guaranteed to him under Article 21 of the Constitution, considering the fact that the applicant is facing prosecution for the last 24 years. There can be no dispute about the fact, that an accused is entitled to a fair and speedy trial as guaranteed to him under Article 21 of the Constitution. The question is, whether in the present case, the delay has been occasioned on account of the non-appearance of respondent No. 2, who is the intended victim in the present case. Admittedly, the charge-sheet was submitted in 1990; charge came to be framed as against the accused in July, 2003; the prosecution i.e. CBI examined its first witness on 23rd September, 2003 and its last witness, PW 38 on 18th December, 2013; on 20th January, 2014, the statement of the accused came to be recorded and the matter was posted for final arguments on 24th February, 2014. It is also not disputed that the witness summons came to be first issued on the respondent No. 2 on 25th August, 2011 for appearing in the said case on 14th September, 2011. Thereafter, the matter was adjourned on several dates and the date given for the respondent No. 2 to appear was 3rd April, 2013. It is not disputed that on 1st April, 2013, an application being Exhibit 230 came to be preferred by the applicant, two days prior to the date fixed for recording of the evidence of the respondent No. 2. In the said application preferred by the applicant No. 1, it was prayed that the case which was fixed for recording of the evidence on 3rd April, 2013 be adjourned to another date. The Special P.P. for the CBI on the application seeking adjournment, gave its say stating, that in view of the personal difficulty of the Advocate for the applicant, prosecution had no objection for the adjournment. Accordingly, the matter came to be adjourned. The watching advocate for the respondent No. 2 gave a say on the said application on 2nd April, 2013 stating therein that, "as the matter was fixed for recording of evidence, Mr. Nusli Wadia was ready and willing to give his evidence on 3/4/13 (the date fixed by this Hon'ble Court). As the matter was adjourned on 1/4/13 and is now kept on 29/4/13, Mr. Wadia is ready and willing to present his evidence any day between 22/4/13 to 4/5/13." The said fact is not controverted by the Counsel for the CBI. The Counsel for the CBI stated that on 29th April, 2013, a Court Commissioner was appointed for taking the evidence of one Mr. Banerjee who was at Pune. Mr. Makasare, the learned Special P.P. for the CBI when questioned, as to what steps were taken by the prosecution to secure the presence of respondent No. 2, in view of the readiness and willingness given by the respondent No. 2 to give his evidence, the only submission made by the Special P.P. was that the watching Advocate was to bring the witness and that they had not taken any steps to procure the presence of the respondent No. 2 after April, 2013. He submitted that whatever steps were taken, were prior to 2012. The learned Counsel for the CBI when questioned, whether on any date before the Trial Court, the case was required to be adjourned on account of absence of the respondent No. 2, his answer is in the negative. It is pertinent to note, that when the application for adjournment was made by the applicant on 1st April, 2013 at that time, the evidence of PW 36 was being recorded. What is intriguing, is that the prosecution took steps to examine PW 38 from the U.S.A. via skype on the question of motive on 18th December, 2013, which procedure had commenced in August, 2013, when the best witness i.e. respondent No. 2, the intended victim, on the point of motive was available and was ready and willing to present his evidence. It appears that only when the watching advocate of the respondent No. 2 went to find out the stage in the proceedings, that she learnt that the prosecution had closed its case and that even the 313 statement of the accused was recorded. It is at that point of time, that the application, being Exhibit 245 came to be preferred by the respondent No. 2. Thus, what is evident, is that the delay cannot be attributed to the respondent No. 2.
17. With regard to the submission of Mr. Desai, that the application, being Exhibit 245, is motivated and calculated and that the purport and intent of the respondent No. 2 is writ large on the face of the application and that the same cannot be said to be relevant to an application filed under Section 311, I have perused the application being Exhibit 245 and the statements of the respondent No. 2, dated 4th August, 1989 and 20th December, 1989. A perusal of the statements of the respondent No. 2 recorded under Section 161 Cr.P.C., show that when inquiries relating to the case of conspiracy to kill respondent No. 2 were made, and it was disclosed to the respondent No. 2, that the applicant Kirti Ambani, an Executive of Reliance Industries Ltd. and another person have been arrested, the respondent No. 2 had given certain instances which had taken place prior to the hatching of the conspiracy, with regard to the business deals between Bombay Dying and Reliance Industries. The respondent No. 2 has stated in his statement, that he felt that certain instances which had taken place during their business, could have motivated the applicant, an employee of the Reliance Industries to consider him as an enemy. The respondent No. 2 has stated certain events that had taken place, particularly the deal relating to paraxylene which had caused huge loss to the Reliance Industries Ltd., to the tune of Rs. 150 Crores per year and that could have motivated them to take certain steps and action against him. A perusal of the 161 statements show that although the statements are speculative, but nevertheless, set out certain factors that could have been responsible for the said conspiracy. The statement of the respondent No. 2 was apparently recorded on the question of possible motive and is thus vital and germane for establishing the same. The respondent No. 2 was the intended victim and certainly had a right to depose in the trial, as a prosecution witness and merely because the respondent No. 2 talks about a wider conspiracy in his application under Section 311 Cr.P.C., cannot be a ground for rejecting the said application.
18. Mr. Desai, does not dispute the fact that the applicant had no right to object or oppose the examination of any prosecution witness, prior to closure of the prosecution case, as it was entirely the prosecution's discretion to decide which witness it ought to examine, in support of its case. According to him, however, now, the applicant would have a right to oppose the said application, filed by the respondent No. 2 under Section 311 Cr.P.C., considering that it is filed at the fag end of the trial and more particularly, when the application is motivated and would defeat the accused's right to a fair and speedy trial. Mr. Desai submits that considering the tenor and purport of the application, there is a likelihood that an application under Section 319 would be preferred, thereby, further delaying the trial and the applicant would again have to go through the rigours of a re-trial which cannot be permitted under Article 21 of the Constitution. It appears that the delay cannot be said to have been occasioned by either of the parties, much less, the respondent No. 2, who was the intended victim and witness in the said case. In a criminal justice system, there can be no doubt that the accused have a valuable right to a fair and speedy trial but at the same time, it cannot be ignored, that a victim too, has a stake in the outcome of the case and in its expeditious disposal. In the present case, for the reasons best known to the CBI, the respondent No. 2 has not been examined on the question of motive, despite being the best witness on the said point and more particularly, when the said witness was ready and willing to depose in the said case. The prosecution's explanation that the watching advocate of the respondent No. 2 should have brought the witness, is absolutely untenable and ridiculous. It is the duty of the prosecuting agency to bring its witnesses, to prove its case and it cannot shirk its responsibility. The burden is on the prosecuting agency, to bring its best evidence and best witnesses forward. Not many have the luxury of appointing a watching advocate and it cannot be the responsibility of the watching advocate to bring witnesses forward for examination. The responsibility in any criminal trial for conduct of its case, is undisputedly of the prosecuting agency.
19. Mr. Desai's submission that when the CBI has already examined PW 38-Kuppuswamy on motive, by allowing respondent No. 2 to be examined on the point of motive, the prosecution will be filling in the lacunas in the case, is untenable and fallacious. I do not wish to comment on the evidence of PW 38. There can be no dispute that in a prosecution, it is the quality of evidence and not the quantity which is material. As observed aforesaid, when the intended victim was available and ready and willing to depose on the point of alleged motive, the CBI ought to have examined the said witness and could not have saddled the responsibility on a junior watching advocate to bring the witness. It was the duty of the CBI to examine its best witness on motive and it ought to have taken steps in that direction. The respondent No. 2's statements recorded under Section 161 Cr.P.C. are on record, which speak about the possible motive and therefore, he being the intended victim, his evidence will be necessary for arriving at a 'just decision' of the case. Therefore, in the facts of the case, it cannot be said that if the respondent No. 2 is examined, the same would amount to filling up of the lacunas in the prosecution case. In a criminal trial, not only the accused but also the victim and the public at large have a stake and interest and therefore a balance has to be struck between the rights of the accused on the one hand and the rights of the victim and society on the other, more particularly, where the offence alleged is one against the society and not the victim alone.
20. It appears from the records and as observed earlier, the respondent No. 2 cannot be said to have occasioned the delay in the said case. It also cannot be disputed that the intended victim has a stake in the outcome of the proceedings, more particularly, when there was an alleged conspiracy to kill him. It is extremely unfortunate, that the CBI took no steps after April, 2013 despite the respondent No. 2 expressing his readiness and willingness to depose as a witness, more particularly, when there were two statements recorded of the respondent No. 2 under Section 161 Cr.P.C. If the prosecution could secure the presence and record the evidence of PW 38-Kuppuswamy from U.S.A. via skype, to throw light on possible motive, there is no answer forthcoming as to what prevented the CBI from examining the respondent No. 2, the best material witness and intended victim, may be, even via skype.
21. As far as the evidentiary value of the statements recorded under Section 161 Cr.P.C. of the respondent No. 2 are concerned, Mr. Desai submitted that the said statements are speculative and merely gives some information to the police so as to enable the police to find out the motive and does not in any way indicate motive for conspiracy. As far as the evidentiary value of the statements recorded under Section 161 Cr.P.C. of the respondent No. 2 with respect to motive, it is for the Court to decide the evidentiary value of the said statements, after recording the substantive evidence of the said witness.
22. With regard to the submission, that the application spells out a 'wider conspiracy' and therefore the possibility of Section 319 being invoked, thereby further derailing the trial and even leading to a re-trial, at this stage, the apprehension is unfounded. Merely because there is a mention of a 'wider conspiracy' in the application preferred under Section 311, cannot be ground for rejecting the respondent No. 2's application. The respondent No. 2's statements recorded under Section 161 discloses in detail the possible motive on account of business rivalry between two corporate industries. The apprehension that possibly 319 Cr.P.C. will be invoked, cannot be a ground for rejecting respondent No. 2's application for his examination under Section 311 Cr.P.C. The apprehension therefore is not tenable. The examination of respondent No. 2 also cannot be said to cause serious prejudice to the applicant, considering respondent No. 2's statements are already on record and considering the peculiar facts and circumstances of the case. The evidence of respondent No. 2 that is likely to be tendered can be said to be germane to the facts of the case and for arriving at a 'just decision of the case'. Needless to state, that the applicant will get an opportunity of rebutting the said evidence.
23. Considering the peculiar facts of the case, it cannot be said that the evidence of the respondent No. 2 is not essential for the just decision of the case. In the present case, the respondent No. 2 was the intended victim, his statements were recorded under Section 161 Cr.P.C. where he has given the possible motive for the applicant No. 1 and others for conspiring to kill him. In fact, the respondent No. 2 was ready to depose as a prosecution witness and had showed his readiness and willingness and in the facts of the case, it cannot be said that either, the delay or his conduct disentitles him from being examined as a witness under Section 311 Cr.P.C. Under Section 311 Cr.P.C., for the examination of a person as a witness, what is relevant for the Court to examine, is only the admissibility or relevance of the witness concerned and not the probative value of the statement. It is not for any Court to prejudge the evidence of witnesses sought to be examined and examination of a witness cannot be refused on the ground that the evidence of that witness would not be conclusive. As far as the evidentiary value of the evidence is concerned, only, and only once the evidence has been laid before it and brought on record, that the Court will consider the same. It may be noted, that the Courts exist to give justice and if the Court is bonafide of the opinion that the examination of the intended victim under Section 311 Cr.P.C. is essential to the 'just decision of the case', then the witness ought to be examined. The probative value of his evidence can be determined and considered after the same is recorded. A Court has a statutory duty to perform, a duty to determine the truth and to render a just decision, a hallmark of a criminal trial.
24. In the facts of the present case, the learned Judge has rightly come to a conclusion that the evidence of respondent No. 2 is essential for arriving at a just decision of the case before it and therefore no interference in the order is warranted. Accordingly, the application is dismissed.
After the order is pronounced, Mr. Desai, learned Senior Counsel for the applicant seeks stay of the order.
Since the incident is of the year 1989, the prayer for stay is rejected.
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