Law Web: Orissa HC: Second revision against fresh order passed by lower court after remand by revisional court maintainable.

It is not understood as to how the Sessions Judge could apply this provision to hold that the revision before the Sessions Judge was barred Under Section 397(3). Cr. P.C. The earlier Criminal Revision which had been filed before the Higli Court had been disposed of directing the trial Court to re-consider the matter and thereafter the trial Court after reconsideration passed a fresh order rejecting the application for recalling the witness. Against the said order, revision was filed before the Sessions Judge. The question as to whether such a revision before the Sessions Judge was maintainable in view of the bar contained in Section 397(2), Cr. P.C. is another matter which need not detain us. The fact remains that the Sessions Judge has not considered the question of maintainability of the revision on the ground of bar Under Section 397(2), but Under Section 397(3), Cr. P.C. Law is well settled that Section 397(3), Cr. P.C. bars a second revision at the instance of the same petitioner. In other words, if an order of the trial Court is challenged before the Sessions Judge or the High Court in revision and such revision is dismissed on merit, a further revision cannot be filed before the High Court or the Sessions Judge, as the case may be, by the party who had unsuccessfully filed the first revision. This does not mean that where a revision has been disposed of with a direction for reconsideration and fresh order is passed by the trial Court on reconsideration, the same cannot be subject to another revision.

IN THE HIGH COURT OF ORISSA

Original Jurisdiction Case No. 9288 of 1999

Decided On: 06.08.1999

Indrajeet Roy Vs. Republic of India

Hon'ble Judges/Coram:

P.K. Misra and R.K. Patra, JJ.

Authored By : P.K. Misra, R.K. Patra

Citation: 1999 CRLJ 4727 (Orissa),MANU/OR/0173/1999.

1. The accused in a pending trial has filed this writ application against the order passed by the Sessions Judge, Khurda at Bhubaneswar, in Criminal Revision No. 39 of 1999 which had been filed against the order of the trial Court rejecting the application of the present petitioner for recalling prosecution witness for further cross- examination.

2. The petitioner is facing trial in the Court of the C.J.M.-cum- Assistant Sessions Judge, Khurda at Bhubaneswar, in S.T. Case No. 36/5 of 1998 on the allegations that he has committed offences Under Sections 354, 376/511, Indian Penal Code. Initially, the case had been registered in Cantonment Police Station and was being investigated by the Investigating Officer thereof. Subsequently, on the basis of a direction of the High Court, the investigation of the case was handed over to the C.B.I, and after further investigation, charge sheet having been filed by the C.B.I., the case is now being tried by the trial Court. After the examination and cross-examination of P.W. 4 were over and while some other prosecution witnesses were being examined, the petitioner filed an application before the trial Court for recalling P.W. 4 for further cross-examination for the purpose of confronting the witness with certain alleged omissions in her statement made before the Investigating Officer at different stages. The said application having been rejected, the petitioner had filed Criminal Revision No. 580 of 1998 in the High Court which was disposed of with the observation that it would be open to the petitioner to file fresh application giving details of the alleged omissions or contradictions sought to be confronted to P.W. 4. Accordingly, the petitioner filed fresh application on 16.2.1999 giving the details of the alleged omissions. Copy of the said application has been annexed as Annexure-1 to the writ application.

The said application was rejected by the trial Court solely on the ground that the statements of the witness recorded by Investigating Officer of Cantonment Police Station and Investigating Officer of C.B.I, on different dates constituted part of the same previous statement and the accused cannot be permitted to confront the statements, as the statements had been made to the Investigating Officers on a subsequent date. The matter came to the High Court in Criminal Revision No. 135 of 1999 which was disposed of by one of us (P. K. Misra, J.) vide judgment dated 26.6.1999, copy whereof has been annexed as Annexure-2 (reported in MANU/OR/0144/1999 : (1999) 17 OCR 157 (Indrajits Roy v. Republic of India and Anr.). In the said decision after referring to the decisions reported in AIR 1958 karn 138 (Munirajappa and Ors. v. State of Mysore) and MANU/UP/0306/1981 (Asan Tharavil Babu v. State of Kerala) and after clarifying the position of law, the trial Court was directed to re-consider the question of recalling P.W. 4 for further cross-examination.

3. Thereafter, the trial Court after hearing both the sides rejected the application for recalling P.W. 4 as per order, annexed as Annexure-3, inter alia, on the grounds that the alleged omissions had no direct relation with the alleged incident and the alleged omissions came into existence after the incident and some of the statements of P.W. 4 on the aspect sought to be cross-examined further were hear-say in nature and some of the statements had already been confronted to the witness and sonic of the omissions were not very material. The trial Court also referred to various decisions including the decision reported in MANU/SC/0053/1959 (Tahsildar Singh and Anr. v. State of U. P.) and observed that the question intended to be confronted to P.W. 4 in no way contradicts the statement made by her before Court and as such the omissions cannot be treated as contradictions and the omissions are minor in nature. The petitioner thereafter filed Criminal Revision No. 39/99 before the Sessions Judge. Khurda at Bhubaneswar. The Sessions Judge rejected the revision on the ground that the revision was barred Under Section 397(3) of the Code of Criminal Procedure (in short, the "Cr.P.C."). It was also observed:

"...........This apart, the learned trial Court has not committed any illegality warranting interference by this Court while exercising its revisional jurisdiction."

The order of the Sessions Judge has been annexed as Annexure-5.

4. This writ application has been heard in presence of counsels for both parties and on the insistence of the counsel for the petitioner, the lower Court records have been called for. The learned counsel for the petitioner has challenged the revisional order on two grounds. Firstly. it is contended that the observation of the Sessions Judge that the revision was hit by Section 397(3) Cr.P.C. is patently illegal and cannot be sustained. It is further submitted that the Sessions Judge having rejected the revision on a patently untenable ground and having not given any other reason for dismissing the revision, the matter should be remanded to the Sessions Judge for fresh consideration of the revision on merit. He has also submitted in the alternative that since the mailer has come to the High Court, the legality of the order passed by the trial Court in rejecting the application for recalling P.W. 4 may be considered on merit. He has attached the order of the trial Court mainly on the ground that the trial Court has not complied with the earlier direction of the High Court contained in Annexure-2 and it is further contended in this context that a valuable right of the accused for effective cross-examination has been negated by the order of the trial Court in refusing to recall the witness.

5. The learned counsel appearing for the C.B.I, has supported the order passed by the trial Court and has submitted that though the Sessions Judge has invoked the bar under Section 397(3) Cr. P.C. he has also dismissed the revision on merit by generally accepting the reasons given by the trial Court. It is submitted that the orders passed by the trial Court and the revisional Court, and particularly that of the trial Court do not suffer any illegality so as to warrant interference in exercise of jurisdiction under Article 227 of the Constitution.

6. So far as the bar Under Section 397(3), Cr. P.C. is concerned, there is no doubt in our mind that the Sessions Judge has patently committed an illegality in observing that the revision before the Sessions Judge was barred Under Section 397(3), Cr. P.C. The learned counsel appearing for the C.B.I, has very fairly submitted that, in fact, no such question had been raised by the C.B.I, before the Sessions Judge. On the other hand, he submitted that the counsel appearing for the C.B.I, had objected to the maintainability of the revision on the ground of Section 397(3), Cr. P.C, as the order passed by the trial Court refusing to recall the witness was an interlocutory order.

7. Section 397(3), Cr.P.C. is as follows ;

"397. Calling for records to exercise powers of revision :

* * * * * *

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."

8. The learned counsel for the C.B.I., however, submitted that even though the aforesaid illegality was committed by the Sessions Judge, a perusal of the other portion of the order of the Sessions Judge indicates that the Sessions Judge had applied his mind to the reasonings given in the trial Court and affirmed the same by observing :

".......This apart, the learned trial Court has not committed any illegality warranting interference by this Court while exercising its revisional jurisdiction."

Combating the aforesaid submission, the learned counsel for the petitioner submitted that the revisional Court was obsessed with the provision contained in Section 397(3), Cr. P.C. and has not given any other reason for dismissing the revision. It is further submitted that the revisional Court was required to give a reasoned order keeping in view the importance of the matter.

9. On a perusal of the order of the Sessions Judge, particularly contained in paragraph-3 of the order, it cannot be said that the Sessions Judge has not applied his mind on merit. The observation made in paragraph-3 coupled with the conclusion of the Sessions Judge to the effect that the trial Court had not committed any illegality warranting interference by the revisional Court, clearly indicates that the revisional Court was of the view that the order passed by the trial Court did not warrant any interference. It cannot be said that reasons have not been assigned by the revisional Court. At any rate, since the question has been re-agitated before this Court and counsel for the petitioner has been permitted to make his submissions on all aspects at length, it is unnecessary to delve into this question as to whether the revisional order is a speaking order or not.

10. Coming to the merits of the contentions raised by the counsel for the petitioner relating to legality of the order passed by the trial Court, the main contention of the counsel is that the observation of the High Court in earlier Criminal Revision No. 135/99 has not been followed by the trial Court. In this context it has been contended that though in the earlier order, there was a direction to consider the evidence of other witnesses, the trial Court has not referred to any other evidence while considering the question of recalling P.W. 4. On going through the earlier decision in Annexure-2, we do not find any substance in such submission of the counsel for the petitioner. A perusal of the earlier decision indicates that this Court while rejecting the observation of the trial Court remanded the matter to the trial Court to reconsider the question of recalling the witness by examining as to whether the alleged omissions were relevant and significant and in the aforesaid context, it was observed that the trial Court would be in a better position to appreciate the contention relating to relevance and significance of the alleged omissions, as other witnesses had already been examined by the trial Court. Moreover, even though the entire L.C.R. has been called for, the learned counsel for the petitioner has not been in a position to indicate as to how statements of other witnesses have made the recalling of P.W.4 necessary or imperative. It is. of course, true that the trial Court in spite of observations made earlier in the revision has observed that it is specifically mentioned in the 161, Cr. P.C. statement that the statement recorded on 5.9.1997 is a continuation of the statement of 23.8.1997 and it cannot be aid that omission Nos. A to L were not in the statement of P.W. 4. However, this casual observation of the trial Court is not the basis of the order rejecting the application for recalling the witness. In the earlier part of the impugned order of the trial Court as well as in later part, the trial Court has come to the conclusion that the alleged omissions were insignificant, irrelevant and did not amount to contradiction.

11. The learned counsel for the petitioner has strenuously contended that the omissions indicated in the application before the trial Court, annexed as Annexure-1, are very vital and significant for the purpose of defence of the accused and should have been permitted. In the writ application, it has been alleged in paragraph-7 that since the vital aspects of cross-examination of confronting the previous statements recorded by the C.B.I, were not allowed by the trial Court, the petitioner filed the application on 7.12.1998 for recalling P.W. 4 for cross-examining the said witness. This assertion contained in the writ petition is not borne out by the materials contained in the L.C.R. In the first petition dated 7.12.1998 for recalling, it was never indicated anywhere that the trial Court had not permitted to put any questions which were sought to be put to the witness. In the subsequent petition dated 16.2.1999, or even after the order passed in Criminal Revision No. 135/99, it is not indicated that the counsel for the accused had not been permitted to put those questions. In the absence of any contemporaneous averment contained in the petitions for recalling, it would be difficult to assume that, in fact, the counsel for the petitioner had not been permitted to put those questions initially when P.W. 4 was being examined and cross-examined.

12. Be that as it may, the relevant question is as to whether P.W. 4 should have been recalled for further cross-examination. While making submissions in this writ application, the counsel for the petitioner in his written note of submissions filed on 4.8.1999 has indicated that the alleged omissions contained in paragraphs E, F and I are not pressed. As such it is not necessary to consider the alleged omissions as indicated in paragraphs - E, F and I of the written note of submissions.

13. Before proceeding to deal with the submission of the learned counsel for the petitioner relating to the omissions indicated in other paragraphs of his application before the trial Court and reflected in the written note of submissions filed in this Court, it is necessary to consider the relevant principle applicable on this aspect.

14. A witness may be examined by the same Investigating Officer on different dates or by different Investigating Officers on different dates. If a witness makes a statement before the Investigating Officer on an earlier occasion and is re-examined by the same Investigating Officer or a different Investigating Officer subsequently, it may not be necessary to repeat the statement already recorded and absence of such statement recorded at a subsequent stage cannot be characterised as an '"omission". On the other hand, if the witness states about some vital and relevant aspect belatedly before the Investigating Officer at a later stage of investigation, his omission to disclose such material during his earlier examination before the Investigating Officer may assume importance. There may be various reasons for such omission. It may be that the particular Investigating Officer might not have put the particular question. It may be that the witness might not have considered the particular aspect to be important, or it may be that the relevancy of a particular fact may become clear after progress in investigation. The point of time as to when the statement is made or the method and manner of recording statement have only relative importance. Even though the statement of the witness is made at different times, the matter has to be decided in the light of relevance of the statement and its importance. Won a consideration of relevant materials, a Court comes to the conclusion that the fact was so important and vital that the witness could not have omitted to state so during earlier examination before the police, and there was no valid reason for such omission, the Court may justifiably come to a conclusion that the statement so made at a subsequent stage was an after-thought or a tutored version. On the other hand, if the alleged omission was insignificant or not relating to any important or relevant and vital aspect, the so-called omission would be of no consequence. The question has to be always decided on the basis of facts and circumstances of a particular case. For example, if an eye-witness omits to state anything regarding the occurrence during his earlier statement before the police, but disclosure about the incident during interrogation on subsequent date without giving any reasonable and acceptable explanation for such omission, the Court would be justified to reject his evidence. If, however, the reason furnished for such omission is acceptable, the Court may ignore such alleged omission. As already indicated, the matter has to be determined on the basis of facts and circumstances of each case. It is neither possible nor desirable to lay down any hard and last rule on this aspect. This position is discernible on a careful reading of the relevant provisions contained in Sections 161 and 162, Cr.P.C. and the decisions reported in AIR 1958 karn 138 and MANU/UP/0306/1981 as analysed and clarified in the decision reported in MANU/OR/0144/1999 : (1999) 17 OCR 157 and the decision of the Supreme Count reported in MANU/SC/0053/1959 (Tahsildar Singh and Anr. v. State of U.P.).

15. Coming to the alleged omissions as contained in paragraphs- A, D and K of the application filed before the trial Court and reiterated in the written note of submissions filed by the learned counsel for the petitioner, it appears that the trial Court has observed that the statements indicated in the aforesaid paragraphs are based on hear-say and the trial Court has further observed that the alleged omissions are very minor or insignificant and the alleged omissions were not irreconcilable with the statements made in the Court.

So far as the alleged omissions referred to in paragraphs-G.J. and M. are concerned, the submission of the learned counsel for the petitioner is that such statements were not narrated by P.W. 4 in her statement recorded by the C.B.I, either on 23.8.1997 or 5.9.1997. However, the learned counsel for the C.B.I, has rightly pointed out that such statements had already been made by the witness before the Investigating Officer of Cantonment Police Station while the matter was first being investigated by the Cantonment Police. Since the statements had already been made before the Investigating Officer on an earlier occasion, it cannot be said that there was any omission on the part of the witness on these aspects. This view gains support from the observation of the Karnataka High Court in the decision reported in MANU/UP/0306/1981.

So far as the alleged omissions indicated in paragraphs-B, C. and L are concerned, it is submitted by the learned counsel for the petitioner that such statements were made for the first time before the Investigating Officer of C.B.I, while the witness was being interrogated on 5.9.1997, but such statements had not been made when she was being examined by the C.B.I, on 23.8.1997, nor before the Investigating Officer of Cantonment Police Station, when she had been examined by such Investigating Officer prior to 23.8.1997. The trial Court has observed that these so-called omissions were not very significant, nor relevant. Keeping in view the nature of the statement of P.W. 4 and keeping in view the principle indicated earlier, it cannot be said that the omission to State on such aspect was very significant. The alleged omissions appear to be very trivial and of no consequence, as has been rightly observed by the trial Court. Judged, against the position of law indicated and keeping in view the facts and circumstances of the case, the observation of the trial Court that the alleged omissions contained in the above paragraphs as well as in other paragraphs were insignificant, cannot be characterized as patently illegal.

16. It is significant to note that the petitioner had not explained in any of the petitions filed for recalling P.W. 4 as to why the questions now found to be relevant by the accused were not put earlier. The assertion that the trial Court had not permitted the petitioner to put those questions is not borne out on record and no such assertion has been made in any of the petitions. It is, no doubt, true that the provision contained in Section 311, Cr. P.C. is to be liberally considered to advance the cause of substantial justice. However, the question as to whether a witness should be recalled or not is essentially within the discretion of the trial Court and unless it is shown that such discretion has been exercised illegally, a revisional Court will be slow to interfere with the discretion of the trial Court and the scope of interference in such matter is very limited and what applies to revisional Court in such matters is applicable with much more rigour to the High Court while exercising supervisory jurisdiction under Article 227 of the Constitution. As observed in the decision reported in MANU/SC/0097/1978 (Jagir Singh v. Ranbir Singh and Anr.), unless illegality or miscarriage of justice is shown, interference under Article 227 of the Constitution is not called for. In the present case, the trial Court had by an elaborate and reasoned order rejected the application of the petitioner for recalling P.W. 4. Though the order of the Sessions Judge is not very happily worded, it is apparent that the order of the trial Court has received general affirmance from the revisional Court. In such a situation unless manifest error of law or miscarriage of justice is shown, it would be proper for the High Court to interfere with orders passed by the two Courts below. This position is clear from the decision reported in (1994) 2 SCC 421 (Santosh De and Anr. v. Archna Guha and Ors.).

17. In spite of such limited scope for interference, we have heard the counsel for the petitioner at length on two dates and perused the lower Court records. After giving our anxious thought to the matter, and after going through the orders passed by the trial Court as well as the revisional Court (particularly, the trial Court) and after going through the contentions raised in the writ application and in the written note of submissions of the petitioner, we are unable to persuade ourselves to hold that this is a fit case where the reasoned order passed by the trial Court and confirmed, though somewhat laconically by the revisional Court, requires interference in exercise of jurisdiction under Articles 226 and 227 of the Constitution. It is, no doubt, true that the observation of the revisional Court regarding bar Under Section 397(3) Cr. P.C, was wholly misconceived, but merely because one part of the reason was patently illegal, the entire order need not be set aside. As observed earlier, the trial Court's order rejecting the application for recalling P.W. 4 for further cross-examination cannot be said to be suffering from any patent illegality or irregularity, nor it can be said that it has caused grave miscarriage of justice warranting interference under Articles 226 and 227 of the Constitution. Accordingly, the writ application is dismissed.

R.K. Patra, J.

18. I agree.

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Tuesday 14 May 2024

Orissa HC: Second revision against fresh order passed by lower court after remand by revisional court maintainable.

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