JUDGMENT
S.K. Shah, J.
1. Rule, returnable forthwith. Heard finally by consent of the parties.
These Writ Petitions are filed by the accused persons involved in the same case and they are impugning the same order passed by the learned Sessions Judge, Dadra and Nagar Haveli, Silvassa. Therefore, both these Writ Petitioners are decided by common order.
2. By order dated 18th April, 2002, the learned Sessions Judge, Dadra & Nagar Haveli, Silvassa, passed below Exhibit 107 in Sessions Case No. 29 of 1997, allowed the prosecution to recall the four witnesses, being P.W.2 – Jayeshkumar Naginbhai Patel, P.W.5 – Ishwar Lakhma Vangad, P.W.7 – Kakad Radka Kurkutia and P.W.8 – Ladak Jania Mishal and examined them again. These witnesses are previously examined and they had turned hostile. It is this order which is impugned in the present Writ Petitioners.
3. Brief facts would be necessary for considering the controversy involved.
The petitioners in these two Petitioners are the accused in Sessions Case No. 29 of 1997 which is pending before the Sessions Judge, Dadra & Nagar Haveli, Silvassa. Lok Sabha elections were scheduled to be held on 2nd May, 1996 in the Union Territory of Dadra & Nagar Haveli. Two political parties Congress (I) and the B.J.P. were the rival parties contesting the said election. According to the allegation of the prosecution, on 29th April, 1996, some of the workers of the Congress (I) Party were proceedings towards the Village Khanvel by jeep. They were allegedly attacked by the workers of the B.J.P. who were coming from the opposite side also in a jeep. In the said incident, one person died on the spot and several others were injured including the aforesaid witnesses who were sought to be re-examined by the prosecution. After investigation, charge-sheet was filed against the petitioners who are accused.
4. The trial of the aforesaid Sessions Case commenced on 2nd March, 2000 and as many as 18 witnesses have been already examined. The aforesaid four witnesses were also examined on 11th and 12th of May, 2000. According to the prosecution, all these four witnesses did not support the prosecution and were declared hostile.
5. Sometime in September 2001, Damabhai Chaudhary, the original complainant, filed Criminal Application No. 3160 of 2001 in this Court requesting for recalling of witness – P.W.2 Jayeshkumar Patel and also praying for transfer of the case to the Court of Additional Sessions Judge, Palghar, District Thane or any other Sessions Court in Mumbai or Thane. It was alleged that this witness P.W.2 was an important witness as he was injured eye-witness. It was further alleged that the P.W.2 did not support the prosecution because of threats given to him by the petitioners and the members of their party and that now the P.W.2 was ready to tell the truth before the Court. That Criminal Application was opposed by the present petitioners as also the prosecution by filing their affidavits. However, on 14th February, 2002, the original complainant – Damabhai Chaudhary withdrew the said Criminal Application without seeking any liberty to file similar petition on similar grounds before the Sessions Court. The said Criminal Application, therefore, came to be dismissed as withdrawn.
6. Within four days thereafter, i.e. on 18th February, 2002, the prosecution moved an Application before the learned Sessions Judge praying for recall of the aforesaid four witnesses. It was alleged in the said Application that the aforesaid four witnesses were important witnesses as they were the eye-witnesses as also injured witnesses and were also present for identification of dead body at the Hospital. It was further alleged that the prosecution had received affidavits sworn by P.W.2 Jayeshkumar Patel, P.W.5 – Ishwar Vangad and P.W.7 Kakad Kurkutia explaining therein the threats received by them as a result of which they could not support the prosecution case. As regards P.W.8 Ladak Mishal, he had made a complaint to the A.I.G.P. making a grievance that he was threatened by the accused not to support the prosecution. The prosecution further alleged in the said Application that the aforesaid four witnesses did not support the prosecution case as they all were threatened by the accused persons. The Application also revealed that P.W.10 – Navas Faraliya by his Application dated 12th June, 2000 made to this Court, sought police protection as he was threatened by the accused persons. It is thereafter that P.W.10 was provided police protection and as a result thereof P.W.10 Navsa Faraliya did not turn hostile and supported the prosecution when examined. It was alleged that from the affidavits and the complaint by P.W.8 received by the prosecution it was clear that the aforesaid four witnesses did not support the prosecution as they were under threats from the accused persons and that those four witnesses are now coming forward to tell the truth before the Court. It was, therefore, prayed in the said Application, in exercise of the powers conferred on the Court under Section 311 of Cr.P.C. the aforesaid four witnesses be recalled and re-examined as prosecution witnesses. It was alleged that it was necessary in the ends of justice that the prosecution was not trying to fill up lacuna in the prosecution case.
7. The said Application was opposed by the petitioners mainly on the grounds of the application being malafide, made with an intent to fill up lacuna in the prosecution case and that the prosecution was barred by res judicata, from making such application before the Sessions Court after they had opposed the Criminal Application No. 3160 of 2001 filed by the original complainant – Damabhai Chaudhary. The petitioners contended in the said reply that it was not clear as to when the threats were given by the accused persons and that as to when they realised their mistake and when they mustered courage to depose truth before the Court. It was contended that there was political rivalry between the petitioners on the one said and the prosecution witnesses on the other side and, therefore, the application for recalling the witnesses was with a malafide intention.
8. By a speaking order passed by the learned Sessions Judge dated 18th April, 2002, he allowed the prosecution to recall the aforesaid four witnesses and examine as prosecution witnesses.
9. I have heard the learned Counsel on both sides. The complainant – Damabhai Chaudhary also sought intervention and his learned Counsel was allowed to make submissions, particularly with a view to assist the Court.
10. The first and foremost contention that needs to be considered is about the maintainability of the Writ Petitioners. In this regard, it has to be noted that soon after the impugned order was passed by the learned Sessions Judge, the petitioners had filed Criminal Revision Application Nos. 180 of 2002 and 181 of 2002 in this Court. The said Revision Applications were withdrawn on 13th August, 2002 by them as the Revision was not maintainable in law. It is thereafter that the present two Criminal Writ Petitions are filed challenging the order of the learned Sessions Judge.
11. It was contended by the learned Counsel for the petitioners that these Writ Petitioners filed under Section 482 of Cr.P.C. are maintainable as by these Petitioners the petitioners are invoking the inherent powers of this Court and that these powers can be exercised by this Court even though the Revision is specifically barred by the provisions of Section 397 of Cr.P.C. In support of this contention, the learned Counsel for the petitioners placed reliance on Madhu Limaye’s case .
As against this, the learned Counsel for the Respondents vehemently submitted that once the Revision filed by the petitioners was dismissed as withdrawn, the Writ Petitions invoking the powers under Section 482 of Cr.P.C. are not maintainable. In support of his submission, he relied upon the decision of the Apex Court in the case of Rajinder Prasad v. Bashir and Ors. reported in 2002 Cri.L.J.90.
12. What the Apex Court made observations in Madhu Limaye’s case, in short is that inherent powers under Section 482 of Cr.P.C. could be invoked for quashing interlocutory order even though the revision is prohibited under Section 397(2) of the Code. The relevant observations of the Apex Court are as under:-
“…..In our opinion, a happy solution of this problem would be to say that the bar provided in Sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one of the other principles enunciated above the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court…”
13. In Rajinder Prasad’s case, the observations of the Supreme Court were as under :-
“…This Court in Krishna’s case (supra) had held that though the power of the High Court under Section 482 of the Code is very wide, yet the same must be exercised sparingly and cautiously particularly in a case where the petitioner is shown to have already invoked the revisional jurisdiction under Section 397 of the Code. Only in cases where the High Court finds that there had been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, the High Court may, in its discretion, prevent the abuse of the process or miscarriage of justice by exercise of jurisdiction under Section 482 of the Code.” It was further held, “ordinarily, when revision has been barred by Section 397(3) of the Code, a person – accused/complaint – cannot be allowed to take recourse to the revision to the High Court under Section 397(10 or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of provisions of Section 397(3) or Section 397(2
of the Code.”
14. It was submitted on behalf of the petitioners that the decision in Rajinder Prasad case was by two Judges of the Apex Court, whereas the decision in Madhu Limaye’s case was by three Judges of the Apex Court and, therefore, the decision by the larger Bench holds still a good law.
As against this, it was submitted on behalf of the Respondents that the facts before the Apex Court in Rajinder Prasad’s case and the facts of the present case before us are similar, whereas the facts in Madhu Limaye’s case were different and, therefore, in the submission of the learned Counsel, the decision in Rajinder Prasad’s case would apply to the present case.
15. It is true that the facts in Madhu Limaye’s case were different than the facts of the present case and that of the Rajinder Prasad’s case. In Madhu Limaye’s case, the very jurisdiction of the Court to proceed with the trial was challenged. In the present case, however, there is no challenge to the jurisdiction, but there is challenge to the exercise of discretion by the Court under Section 311 of Cr.P.C. In Rajinder Prasad’s case, earlier a revision-petitioner was filed which subsequently was dismissed as not pressed. Similar is the position in the instant case before us where the impugned order of the learned Sessions Judge was challenged in Criminal Revision Applications and those Criminal Revision Applications came to be dismissed as they were withdrawn. The Apex court in Rajinder Prasad’s case held that in such an eventuality, the power under Section 482 of Cr.P.C. cannot be invoked and the writ petition was not maintainable. This being the position, the present Writ Petitioners also would not be entertainable.
16. However, in Rajinder Prasad’s case the Apex Court also held that the powers under Section 482 Cr.P.C. were very wide and they should be exercised “sparingly and cautiously …Only in cases where the High Court finds that there has been failure of justice or misuse of judicial mechanism or procedure (sic) sentence or order was not correct, the High Court may, in its discretion, prevent the abuse of the process or miscarriage of justice by exercise of jurisdiction under Section 482 of the Code.” In Rajinder Prasad’s case, the Apex Court also in para 8 observed as under :-
“8. We are of the opinion that no special circumstances were spelt out in the subsequent application for invoking the jurisdiction of the High Court under Section 482 of the Code and the impugned order is liable to be set aside on this ground alone.”
This being the position, it would be open for this Court to exercise powers under Section 482 of the Code only if any special circumstances were spelt out in the Writ Petitioners subsequent to the filing of the Criminal Writ Petitioners. The jurisdiction of this Court under Section 482 of the Code could be invoked.
17. Be that as it may, with a view to have complete decision on the matter, I will consider the merits also instead of taking restricted view on the technicalities. The learned Counsel on both sides also expressed likewise.
18. The main grievance with regard to the impugned order was that if the witnesses are recalled and examined again in support of the prosecution, it would be filling up lacuna in the prosecution case which, according to the learned Counsel for the petitioners, is not permissible under the provisions of Section 311 of the Cr.P.C. Section 311 of Cr.P.C. is as under :-
“311. Power to summon material witness, or examine person present.
Any court may, at any stage of any inquiry, trial or other proceeding under the Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examined 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.”
In view of these provisions, it is the discretion of the Court could be exercise at any stage of any inquiry, trial or other proceeding to summon any person as the witness or examine any person in attendance, though not summoned as a witness or recall and re-examine any witness. The second part of Section 311 is mandatory in the sense that the Court shall have to summon and examine or recall and e-examine any person if his evidence appears to the Court to be essential to the just decision of the case. Thus, the Sessions Court has powers to recall and re-examine witness already examined at any stage of the proceedings. In the first part, it is the discretion of the court. But in second part when it appears to the Court that the evidence of particular person is essential to the just decision of the case, then the Court shall have to summon or re-call and re-examine such person. Therefore, the order of the Sessions Court in recalling and re-examining the aforesaid four witnesses was within his discretion.
19. The submission made on behalf of the petitioners however is that the exercise of this discretion by the learned Sessions Judge was not only pre-judicial to the petitioners – accused persons, but was also helped the prosecution to fill up the lacuna in the prosecution case. It would, therefore, be necessary to understand what is meant by lacuna in the prosecution case. The Apex Court had occasion to explain the meaning of the lacuna. In the case of Rajendra Prasad v. Narcotic Cell, . The relevant observations of the Apex Court are as under :-
“Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. In 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. After all, function of the crimina 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.”
Thus, it is clear that the lacuna is not something which is through oversight in the management of the prosecution or inadvertence with which proper evidence was not adduced where in such cases the Court is expected to be magnanimous in permitting such mistakes or inadvertence. The lacuna in the prosecution case has a meaning of inherent weakness in the prosecution case. The prosecution case is one which is submitted along with the charge-sheet. If such lacuna is left at the level of the filing of charge-sheet, that means if there is any lacuna in the investigation, that lacuna cannot be overcome by the prosecution during the course of trial or by taking recourse to the provisions of Section 311 of Cr.P.C.
20. What was happened in the instant case is that the witnesses had turned hostile by reason of the fact that they were threatened by the accused persons. Now those very witnesses are coming forward by making affidavits as to why they did not support the prosecution earlier and as to why they now want to support the prosecution. What is material to be noted is that their statement recorded under Section 161 of the code stands as they are submitted along with the charge-sheet. Therefore, if these witnesses are allowed to depose before the Court as they have stated before the police in their statement under Section 161 of the code, that would not be filling up the lacuna in the prosecution case. Therefore, the submissions made by the learned Counsel for the petitioners that recalling the witnesses and re-examining them would be allowing filling up lacuna in the prosecution case is not acceptable.
21. Another aspect which is vehemently submitted by the learned Counsel for the petitioners is that the application made by the prosecution for recalling and re-examining the aforesaid four witnesses is not bonafide, but it is malafide. It is submitted that this is so because there are no details as to when these prosecution witnesses were threatened, whether they had complained to the police about such threats, and when they felt re-assured and felt free from threats so that they can now depose truth before the Court. It is also submitted that the aforesaid witnesses have come forward belatedly and, therefore, it smacks of malafides. It is submitted that this application for recalling of witnesses will have to be considered in the background of the political rivalry between the accused on the one side and the complainant and the witnesses on the other side.
22. On the other hand, it is submitted by the learned Counsel for the Respondents that it was brought to the notice of the Court by one of the prosecution witnesses that the witnesses were being threatened by the accused persons and, therefore, they were not telling truth before the Court. It was further submitted on behalf of the Respondents that mere delay cannot be termed as application being malafide.
23. In this regard, what is important to be noted is that these witnesses had given statements before the police under Section 161 of Cr.P.C. Therefore, from the documents submitted along with the charge-sheet, it is clear that these four witnesses were eye-witnesses to the incident and one or two of them were actually injured. Their presence at the time of incident therefore could not be questioned at this stage. These witnesses have stated on affidavits that the accused persons had threatened them and the members of their family if they depose against the accused persons. Thus they have explained in their affidavits as to under what circumstances they could not tell the truth and support the prosecution. Therefore, merely because when they are now coming forward to give evidence regarding the truth of the matter before the Court it cannot be said that they are acting with malafide intention. Political rivalry has a double effect. It has given rise to the present incident. Merely because they are coming forward belatedly also cannot be equated with malafide intention. Malafide has different meaning altogether which requires active false implication for achieving the different object that is far from truth. That is not contended in the present case. This is so because the statements of four witnesses have already been recorded and these witnesses can not go beyond those statements. Therefore, if they are now coming forward though belatedly, to strick to their statements and tell before the Court the truth that cannot be termed as malafide. Under these circumstances, even this submission made by the learned Counsel for the petitioners does not have any merit.
24. As indicated above, the scope under Section 482 of the Code required exercise of inherent jurisdiction of this Court to prevent abuse of process or prevent miscarriage of justice. As discussed above, it cannot be said that by allowing the application to recall the aforesaid four witnesses for the purpose of re-examining, the learned Sessions Judge has committed as abuse of process or if those witnesses are recalled and re-examined, it will have the effect of miscarriage of justice. On the contrary, these four witnesses are coming forward to depose the truth. Thus by allowing the prosecution to recall and re-examine those witnesses would help the Court in arriving at just decision of the case. No prejudice would be caused to the petitioners – accused persons as they will have full opportunity to cross-examine the witnesses.
25. It was also submitted on behalf of the petitioners that they have already disclosed their defence and prejudice would be caused if the witnesses are recalled and re-examined. However, on behalf of the Respondents, it is submitted that although it is true that the accused have disclosed their defence but that defence is only of total denial. There has been no specific defence so that prejudice would be caused to the accused persons if the witnesses are recalled and re-examined.
26. It was further submitted on behalf of the petitioners that in the Criminal Application No. 3160 of 2001 filed by the original complainant, there was a prayer for recalling and re-examining the witness Jayeshkumar Patel (P.W.2). However, that application was opposed by the prosecution and, therefore, now it will not be open for the prosecution to recall the same witness and in addition three more witnesses. However, this submission also does not have merit. The opposition was, as submitted on behalf of the Respondents, mainly to the prayer for transfer of the case from the Court of Sessions, Dadra & Nagar Haveli to the District Thane or Courts in Mumbai. It appears that the opposition to that application was because of delay in P.W.2 coming forward to give evidence and that there was a prayer for transfer. However, in a public prosecution, the prosecutor is at the helm of affairs and it is not unlikely that the view would change with the change in the prosecution. That however did not operate as res judicata. The said Criminal Application No. 3160 of 2001 was not decided on merits. It came to be withdrawn. Therefore, there was no finding of Court on any aspect. Therefore, this submission is also not accepted.
27. Reliance was placed on the decision of this Court in the case of R.N. Kakkar v. Haif Gafoor Naviwala and Ors. reported in 1996 Cri.L.J. 365 in order to submit that such application made at the belated stage should not be allowed. However, the facts in the case of R.N. Kakkar were different. In that case, the entire evidence was led. The statement of the accused was recorded and arguments were concluded. It is at that stage that the application for production of documents showing recording of information received was sought to be produced as also the samples which were not traced were sought to be produced. In the present case, however, the trial is not over. Some 18 witnesses are examined. Some more witnesses are yet to be examined including the Investigating Officer. Therefore, that has no application here.
28. In these circumstances, even after invoking the inherent powers under Section 482 of the Code, I do not find that any abuse of process or miscarriage of justice would entail if the witnesses are recalled and re-examined. On the contrary, their evidence will be essential for the just decision of the case. Under the circumstances, I do not find any illegality or impropriety in the order passed by the learned Sessions Judge.
29. Consequently, I do not find any merit in these Writ Petitioners. Both the Writ Petitioners are, therefore, dismissed. Rule discharged.
30. The learned Counsel for the petitioners, on pronouncement of the Judgment, requests that he may be granted four weeks time of going to the Supreme Court. The learned Counsel for the Respondents objects to the said request saying that even otherwise, in Silvassa, the sitting of the Sessions Judge is only 2 – 3 days in a month and the next sitting is somewhere in the middle of March, 2003. As such, automatically the petitioners get time. Even otherwise, the trial has been delayed for quite long. Therefore, I am not inclined to grant the request. The prayer is refused.
31. R & P be sent to the Sessions Court, Dadra & Nagar Haveli, Silvassa, immediately.