Dr. Pradeep Dutta v. State (NCT of Delhi) & Ors

State of Mysore vs. A.G.Ramaswamy[2] to submit that recourse to Section 311 of the CrPC should not be permitted to fill a lacuna in the prosecution case.

16. On the basis of these contentions, Mr. Garg submits that, the order of the MM does not display any perversity, much less abuse of process of the court, warranting interference of this Court under Section 482 of the CrPC. Analysis

17. The first question to be addressed is as to whether an application under Section 311 of the CrPC could, in the facts and circumstances noted above, have been maintained by the petitioner. In this connection, it may be noted that the petitioner had been permitted by the order of the MM dated 01.11.2017 to assist the prosecution in conduct of the case. The provision of Section 301 of the CrPC, which 1967 SCC OnLine Kar 143 was rightly invoked by the MM in place of Section 302 mentioned by the petitioner, reads as follows:-

18. The role assigned to the counsel for the victim has been elaborately discussed in the judgment of the Supreme Court in Rekha Murarka[3], cited by Mr. Garg. While the role of the independent Public Prosecutor has been emphasised, the Court also elaborated upon the role of the counsel for the victim to render assistance to the prosecution and observed as follows:-

11.2. In some instances, such a wide array of functions may also have adverse consequences on the fairness of a trial. For instance, there may be a case where the Public Prosecutor may make a strategic call to examine some witnesses and leave out others. If the victim’s counsel insists upon examining any of the left-out witnesses, it is possible that the evidence so brought forth may weaken the prosecution case. If given a free hand, in some instances, the trial may even end up becoming a vindictive battle between the victim’s counsel and the accused, which may further impact the safeguards put in place for the accused in criminal trials. These lapses may be aggravated by a lack of advocacy experience on the part of the victim’s counsel. In contrast, such dangers would not arise in the case of a Public Prosecutor, who is required to have considerable experience in the practice of law, and act as an independent officer of the court. Thus, it is important to appreciate why the role of a victim’s counsel is made subject to the instructions of the Public Prosecutor, who occupies a prime position by virtue of the increased responsibilities shouldered by him with respect to the conduct of a criminal trial.

11.3. At the same time, the realities of criminal prosecutions, as they are conducted today, cannot be ignored. There is no denying that Public Prosecutors are often overworked. In certain places, there may be a single Public Prosecutor conducting trials in over two-three courts. Thus, the possibility of them missing out on certain aspects of the case cannot be ignored or discounted. A victim-centric approach that allows for greater participation of the victim in the conduct of the trial can go a long way in plugging such gaps. To this extent, we agree with the submission made by the learned Senior Counsel for the appellant that the introduction of the proviso to Section 24(8) acts as a safety valve, inasmuch as the victim’s counsel can make up for any oversights or deficiencies in the prosecution case. Further, to ensure that the right of appeal accorded to a victim under the proviso to Section 372 CrPC is a not rendered meaningless due to the errors of the Public Prosecutor at the trial stage itself, we find that some significant role should be given to the victim’s counsel while assisting the prosecution. However, while doing so, the balance inherent in the scheme of CrPC should not be tampered with, and the prime role accorded to the Public Prosecutor should not be diluted.

11.4. In this regard, given that the modalities of each case are different, we find that the extent of assistance and the manner of giving it would depend on the facts and circumstances of each case. Though we cannot detail and discuss all possible scenarios that may arise during a criminal prosecution, we find that a victim’s counsel should ordinarily not be given the right to make oral arguments or examine and crossexamine witnesses. As stated in Section 301(2), the private party’s pleader is subject to the directions of the Public Prosecutor. In our considered opinion, the same principle should apply to the victim’s counsel under the proviso to Section 24(8), as it adequately ensures that the interests of the victim are represented. If the victim’s counsel feels that a certain aspect has gone unaddressed in the examination of the witnesses or the arguments advanced by the Public Prosecutor, he may route any questions or points through the Public Prosecutor himself. This would not only preserve the paramount position of the Public Prosecutor under the scheme of CrPC, but also ensure that there is no inconsistency between the case advanced by the Public Prosecutor and the victim’s counsel.

11.5. However, even if there is a situation where the Public Prosecutor fails to highlight some issue of importance despite it having been suggested by the victim’s counsel, the victim’s counsel may still not be given the unbridled mantle of making oral arguments or examining witnesses. This is because in such cases, he still has a recourse by channelling his questions or arguments through the Judge first. For instance, if the victim’s counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under Section 311 CrPC or Section 165 of the Evidence Act, 1872. In this regard, we agree with the observations made by the Tripura High Court in Uma Saha v. State of Tripura that the victim’s counsel has a limited right of assisting the prosecution, which may extend to suggesting questions to the court or the prosecution, but not putting them by himself.”4

19. Applying the aforesaid principles to the facts of the present case, it is noteworthy that the application made by the petitioner under Section 311 of the CrPC was, in fact, endorsed by the Prosecutor also. Emphasis has been laid by Mr. Garg on the limitation presented in the aforesaid judgment that the victim’s counsel must have a secondary role of “assistance” to the Public Prosecutor. Such a supportive role is not inconsistent with the filing of an application by the victim’s counsel with the concurrence, or endorsement, of the Public Prosecutor. The apprehension expressed by the Supreme Court in Rekha Murarka[5], with regard to a free hand being given to the victim’s counsel, does not arise in a situation where the Public Prosecutor has also accepted the contention of the victim’s counsel. The present case, to this extent, fits in with the role of the victim’s counsel as a whole, as laid down in Rekha Murarka. I, therefore, do not accept Mr. Garg’s contention that the application was not maintainable on this ground.

20. The Supreme Court, in its recent judgment in Jagjeet Singh & Ors. vs. Ashish Mishra @ Monu & Anr.6, has emphasised the rights of the victims in the context of the evolving jurisprudence in this area. The Court has held that the rights of the victim under the amended CrPC are “totally independent, incomparable and are not accessory or Emphasis supplied. Supra (Note 1) [paragraph 11.2] Crl.A. 632/2022, decided on 18.04.2022 auxiliary to those of the State under the CrPC”7. In view of the fact that the application filed by the counsel for the petitioner in the present case was, in any event, endorsed by the prosecution, it is not necessary to consider whether such an application would have been maintainable in the absence of such consent/endorsement.

21. Turning now to the ground of delay, the chronology relating to the conduct of the trial has been set out in paragraph 13 hereinabove. These facts are not disputed by Mr. Garg. They reveal that the delay cannot be attributed to the petitioner. The examination-in-chief of the petitioner (PW-1), which was recorded on 24.07.2009, shows that he had deposed at that stage itself as to the presence of Akhtar and Chauhan at the place of occurrence of the alleged incident. The petitioner’s wife (PW-2), in her cross examination on 04.05.2016, also specifically stated that these two persons reached the spot. Similar evidence has also been led by the petitioner’s daughter (PW-3) in her examination-in-chief on 28.11.2017. The petitioner’s application seeking to include them as witnesses cannot, therefore, said to be entirely by way of an afterthought.

22. In any event, while dealing with the scope of Section 311 of the CrPC, the Supreme Court, in a number of judgments, has made it clear that delay itself cannot be a ground for dismissal of the application. Reference in this connection may be made to the judgment of the Refer paragraph 23. Supreme Court in Manju Devi vs. State of Rajasthan and Anr[8], which held as follows:-

23. In the present case, it may be noted that despite the delay, defence evidence has not yet commenced.

24. I am, therefore, not inclined to accept Mr. Garg’s submission on this ground.

25. This brings us to the question of whether, in the facts and circumstances of the present case, the proposed witnesses are liable to be summoned in exercise of power under Section 311 of the CrPC.

26. Section 311 of the CrPC reads as follows:-

27. The scope of Section 311 of the CrPC has been considered by the Supreme Court inter alia in Natasha Singh vs. CBI (State)9, wherein the Court, after reference to earlier authorities, stated the principle in the following terms:- “15. 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 CrPC 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. The power conferred under Section 311 CrPC 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 great caution and circumspection. The very use of words such as “any court”, “at any stage”, or “or any enquiry, trial or other proceedings”, “any person” and “any such person” clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.

16. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person's right to fair trial be jeopardised. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same.”10

28. A more detailed enumeration of these principles can be found in the judgment of the Supreme Court in Rajaram Prasad Yadav vs. State of Bihar and Anr11, which held as follows:-

29. More recently, the Supreme Court has had the occasion to deal with Section 311 of the CrPC, in Manju Devi13, and in State Represented by The Deputy Superintendent of Police vs. Tr. N. Supra (Note 8) Seenivasagan14, as well as in V.N. Patil vs. K Niranjan Kumar and Ors15.

30. In Manju Devi16, the Court emphasised that provisions such as Section 311 of the CrPC are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the records straight and to clear any ambiguity insofar as the evidence is concerned, as also to ensure that no prejudice is caused to anyone. In Tr. N. Seenivasagan17, the Court referred to Manju Devi, and held that the true test is whether it appears to the Court that the evidence of the person sought to be recalled is essential to the just decision of the case.

31. In V.N. Patil18, the Supreme Court was concerned with a case where the Trial Court had allowed an application of the prosecution under Section 311 of the CrPC, although the proposed witnesses had not been examined by the Investigating Officer during the course of the investigation nor cited as prosecution witnesses in the final report submitted to the Court. The High Court had reversed the decision of the Trial Court. The Supreme Court noted the judgment of the Trial Court to the effect that no hardship could be caused to the accused since the witnesses and the documents intended to be summoned, would be subjected to cross-examination and testification as per the provisions of the CrPC. The Court recorded that the object of Section 311 of the CrPC is to avoid a failure of justice on account of mistake of either party in bringing valuable evidence on record or leaving

Supra (Note 8) Supra (Note 14) Supra (Note 15) ambiguity in the witnesses from either side and that the provision strengthens the arms of the Court in its effort to unearth the truth by procedure sanctioned to law. On these grounds, the Supreme Court, in fact, affirmed the judgment of the Trial Court and reversed the judgment of the High Court to the contrary.

32. Applying these principles to the present case, I am of the view that the subject application under Section 311 of the CrPC ought to have been allowed in the facts and circumstances of the present case. The evidence thus far recorded before the MM suggests that the proposed witnesses were eye witnesses to the alleged incident in question. They have, in fact, been examined as defence witnesses in the cross FIR registered at the instance of the respondent Nos. 2 to 5 herein against the petitioner. The MM, in the impugned order dated 04.12.2021, has come to the conclusion that the evidence of the proposed witnesses is not essential, as the Court has before it the evidence of the petitioner, his wife, and his daughter, who were also stated to be eye witnesses. The petitioner’s daughter, however, was not present on the spot. The petitioner is himself the victim, and the evidence of the other eye witnesses would be required to examine the veracity of the evidence of the petitioner and his wife, even though the proposed witnesses are also employees of the petitioner.

33. In these circumstances, the evidence of the proposed witnesses cannot be said to be entirely unnecessary or superfluous. As observed by the Supreme Court in Rajaram Prasad Yadav19, it is not necessary for the evidence to be essential, in the sense that judgment cannot be Supra (Note 11) [paragraph 17.9] pronounced without it, but for it to be required to avoid a failure of justice. Mr. Garg has not identified any particular lacuna in the prosecution case, which is sought to be filled in by calling the additional witnesses. The defence evidence has not yet commenced and, therefore, no insurmountable prejudice would be caused to the respondent Nos. 2 to 5, by summoning of the proposed witnesses.

34. For the aforesaid reasons, I am of the view that the principles laid down by the Supreme Court in the abovementioned judgments, apply to the present case, as the evidence of the proposed witnesses would enable the court to determine the true position on appropriate proof. The case satisfies the test indicated by the Supreme Court in Natasha Singh20, i.e. that the evidence to be tendered by the proposed witnesses would be “germane to the issue involved”21.

35. Mr. Garg’s submission that the evidence of Chauhan and Akhtar cannot be adduced as they were not named in the FIR or in the chargesheet is also unpersuasive. As noted above, in its recent decision in V.N. Patil22, the Supreme Court was faced with a similar argument23. The Court, however, having regard to the objective of Section 311 of the CrPC, permitted the witness to be summoned. In doing so, the Supreme Court reversed the view of the High Court to the contrary, and restored the directions of the Trial Court.

36. The issue has also been considered by the High Courts of Himachal Pradesh and Orissa. In Kewal Gupta vs. The State of Supra (Note 9) Refer paragraph 15 Supra (Note 15) Refer paragraph 7 Himachal Pradesh24, the High Court of Himachal Pradesh recorded the following submissions of the counsel:-

The High Court dealt with this submission as follows:-

37. The Orissa High Court, in Karam Chand Mukhi and Others vs. Santosh Pradhan and Another26, held in the following terms:-

38. The judgment of the Mysore High Court in A.G. Ramaswamy28 cited by Mr. Garg, also does not persuade me to a contrary conclusion. In that case, the Court held that the power under Section 540 of the Code of Criminal Procedure, 1898 [corresponding with Section 311 of the 1973 CrPC], could not have been exercised, recording that no reasons were given as to why the witnesses were required to be examined. The Court came to the view that the application in that case was intended to fill a gap in the prosecution’s case. In the present case, for the reasons stated above, I have come to a different conclusion on both these issues.

39. For the aforesaid reasons, I am of the view that the evidence of the proposed witnesses in the present case ought to have been permitted, being essential to the just decision of the case. Supra (Note 2) Conclusion

40. The petition is, therefore, allowed, and the impugned order of the MM dated 04.12.2021 is set aside. The application dated 12.11.2021, filed by the petitioner, under Section 311 of the CrPC [with the endorsement of the prosecution] is allowed, and the MM is directed to summon the persons named in paragraph 16 of the said application as prosecution witnesses.

41. It is made clear that the proposed witnesses will be called as prosecution witnesses, and the role of the counsel for the petitioner will be limited to the role permitted in law with regard to any other prosecution witness. The said witnesses will also naturally be subject to cross examination by the respondent Nos. 2 to 5- accused.

42. The petition, alongwith the pending application, stands disposed of in these terms.

PRATEEK JALAN, J. MAY 02, 2022 ‘Pv/Bp/Fmm’