Full Text
HIGH COURT OF DELHI
JUDGMENT
Date of Decision: 23.09.2019 IN THE MATTER OF
CENTRAL BUREAU OF INVESTIGATION ..... Petitioner
Through: Mr.Mridul Jain, Spl.PP.
Through: Mr. Dinesh Kumar Garg, Advocate with R-2 in person.
1. The present petition has been instituted challenging the impugned order dated 15.07.2019 passed by the District & Sessions Judge-Cum- Special Judge (PC Act) (CBI) in CC No. 04/2019. Vide impugned order, the petitioner’s application filed under Section 311 Cr.P.C. for recall of witnesses and filing additional documents was dismissed.
2. Briefly, the facts necessary for disposal of present petition are that one Vijender Singh filed a complaint dated 02.02.2012 with the CBI wherein it was stated that he had applied to the Office of SDM-cumthe name of ‘HELP FOR HELP WITH HELPING HAND’. In this connection, the complainant visited the said office number of times and also met respondents, however, the requisite certificate of registration was not issued. On 23.01.12, the complainant met respondent no.1 (the 2019:DHC:4846 concerned clerk) who asked him to speak to respondent no.2 (a peon in the said office) in this regard. When the complainant met respondent no.2, he demanded Rs.3000/- from the complainant and also asked for his mobile number. On 31.01.12 at about 17:10 hours, respondent no.1 called the complainant and told him that the society has been registered and he should pay Rs.3000/- to respondent no.2 to get the certificate. As the complainant was not willing to pay the bribe, he filed a complaint with the CBI. After conducting enquiries, the CBI registered a case. On 03.03.12, a trap was laid and respondent no.2, while negotiating the bribe amount, was caught red handed. Subsequently, after completing the investigation, a charge-sheet was filed under Sections 120-B IPC read with Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,1988.
3. The prosecution filed CDs containing voice samples and voice recordings of the respondents in support of the case. The cognizance of the offence was taken and the trial proceeded. The prosecution examined 13 witnesses in total. Vide order dated 01.05.2019, the prosecution evidence was closed. The statement of both the accused/respondents under Section 313 Cr.P.C. was recorded on 27.05.2019 and the case was listed on 01.07.2019 for the recording of the defence evidence. At this stage, i.e. on 01.07.2019, the petitioner/CBI moved an application under Section 311 Cr.P.C. to recall the witnesses, namely, Nikhil Malhotra, S.K. Khullar and the complainant. A prayer was also made to place on record the certificate under Section 65-B of Indian Evidence Act with reference to the voice samples and the voice recordings.
4. It is the case of the petitioner that the requisite certificates under Section 65B of the Indian Evidence Act could not be filed earlier inadvertently. However, the CDs in respect of the above voice samples and voice recordings were already filed and placed on record. Learned Counsel for the petitioner submitted that by filing the aforesaid certificate under Section 65B of the Indian Evidence Act and recalling the witnesses in this respect would not change the nature of the case against the accused/respondents as the said conversations have been relied upon by the prosecution right from the inception and the CDs containing the said conversations are already part of the trial court record. It was submitted that the error in not placing the said certificates on record earlier was bona fide and the requisite application was filed in time as the case was still at the stage of recording of the defence evidence. Learned counsel urged that it cannot be said that the application was moved to fill up the lacuna. He assailed the observation in the impugned order where it has been observed that the defence of the accused had proceeded on the premise that the recordings would not be read in evidence and allowing the application would amount to filling up the lacuna in the case, thus, prejudicing the accused.
5. Per contra, learned counsel for the respondents submitted that the petitioner deliberately did not file the certificate under Section 65B of the Indian Evidence Act earlier. It was contended that it is not the case where the certificate was obtained earlier but could not be filed, inadvertently. He submitted that the certificate, sought to be filed, has been obtained recently. It was urged that the said certificate ought to have been filed along with the charge-sheet or at the time when the evidence of the concerned witness was being recorded.
6. I have heard the learned counsel for the parties and have gone through the case records and the relevant order sheets which have been placed on record.
7. The moot point to be decided by this Court is the Scope of Section 311 Cr.P.C. and whether the application filed by the petitioner/CBI seeking permission to recall the afore-mentioned three witnesses in and to place on record the certificate under Section 65-B of the Indian Evidence Act in support of the CDs containing the voice samples and voice recordings, can be allowed at this stage.
8. In so far as scope of Section 311 Cr.P.C. is concerned, it is no longer res integra that the court has ample powers of summoning or recalling and re-examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. In Mohan Lal Shamji Soni v. Union of India and Anr. reported as 1991 Supp (1) SCC 271, the Supreme Court considered the scope of Section 540 of the old Code (corresponding to Section 311 of the new Code). It was observed that the Section is manifestly in two parts. The first part which uses the word ‘may’ enables the Court to act in one of the following three ways: “7. Section 540 was found in Chapter XLVI of the old Code of 1898 under the heading ‘Miscellaneous’. But the present corresponding Section 311 of the new Code is found among other sections in Chapter XXIV under the heading 'General Provisions as to Enquiries and Trials'. Section 311 is an almost verbatim reproduction of Section 540 of the old Code except for the insertion of the words 'to be' before the word 'essential' occurring in the old Section. This section is manifestly in two parts. Whereas the word used in the first part is 'may' the word used in the second part is 'shall'. In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Code and enables it 'at any stage of enquiry, trial or other proceedings' under the Code to act in one of the three ways, namely, (1) to summon any person as a witness, or (2) to examine any person in attendance, though not summoned as a witness, or (3) to recall and re-examine any person already examined.
10. 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. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavorable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of a court should simply sit as a mere umpire at a contest between two parties and declare at the end of combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a court must discharge its statutory functions-whether discretionary or obligatory-according to law in dispensing justice because it is the duty of a court not only to do justice but also to ensure that justice is being done. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the New Code) are enacted whereunder any court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and reexamine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated. xxx
16. The second part of Section 540 as pointed out albeit imposes upon the court an obligation of summoning or recalling and reexamining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any party to the proceedings points out the desirability some evidence being taken, then the court has to exercise its power under this provision-either discretionary or mandatory-depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice. In this connection we would like to quote with approval the following views of Lumpkin, J. in Epps v. S., which reads thus: "........it is not only the right but the duty of the presiding judge to call the attention of the witness to it, whether it makes for or against the prosecution; his aim being neither to punish the innocent nor screen the guilty, but to administer the law correctly. Counsel seek only for their client's success; but the judge must watch that justice triumphs." xxx
21. At the risk of repetition it may be said that Section 540 allows the court to invoke its inherent power at any stage, as long as the court retains seisin of the criminal proceeding, without qualifying any limitation or prohibition. Needless to say that an enquiry or trial in a criminal proceeding comes to an end or reaches its finality when the order or judgment is pronounced and until then the court has power to use this section……." (Emphasis added)
9. In Rajendra Prasad vs. Narcotic Cellreported as (1999) 6 SCC 110, it was held as under:- "7. It is a common experience in criminal Courts that defence counsel would raise objections whenever Courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act, 1872 by saying that the Court could not “fill the lacuna in the prosecution case”. A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producting relevant materials or in eliciting relevant answers from witnesses. The adage 'to err is human' is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a Court cannot fill up.
8. 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 over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. 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. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better. xxx
12. We cannot therefore accept the contention of the appellant as a legal proposition that the Court cannot exercise power of resummoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that prosecution discovered laches only when the defence highlighted them during final arguments. The power of the Court is plenary to summon or even recall any witness at any stage of the case if the Court considers it necessary for a just decision. The steps which the trial Court permitted in this case for re-summoning certain witnesses cannot therefore be spurned down or frowned at.” (emphasis added)
10. In P.Sanjeeva Rao v. State of Andhra Pradesh reported as (2012) 7 SCC 56, it held as under:- “22. Discovery of the truth is the essential purpose of any trial or enquiry, observed a three-Judge Bench of this Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria. A timely reminder of that solemn duty was given in the following words: (SCC p. 384, para 35) “What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice.”
11. Similarly, in Rajaram Prasad Yadav v. State of Bihar and another reported as (2013) 14 SCC 461, it was held as under:- “17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts: 17.[1] 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? 17.[2] The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated. 17.[3] 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. 17.[4] The exercise of power under Section 311 Cr.P.C. 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. 17.[5] 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. 17.[6] The wide discretionary power should be exercised judiciously and not arbitrarily. 17.[7] 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. 17.[8] The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision. 17.[9] The Court arrives at the conclusion that additional MCRC- 26900-2017 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.
17.10 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.
17.11 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.
17.12 The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
17.13 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.
17.14 The power under Section 311 Cr.P.C. 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 view taken in Mohan Lal Shamji Soni (supra) was re-affirmed by the Supreme Court in Mannan Shaikh and others v. State of West Bengal and another reported as (2014) 13 SCC 59, where it was held:- "22. In the ultimate analysis we must record that the impugned order merits no interference. We must, however, clarify that oversight of the prosecution is not appreciated by us. But cause of justice must not be allowed to suffer because of the oversight of the prosecution. We also make it clear that whether deceased RupchandSk's statement recorded by PW 15 SI Dayal Mukherjee is a dying declaration or not, what is its evidentiary value are questions on which we have not expressed any opinion. If any observation of ours directly or indirectly touches upon this aspect, we make it clear that it is not our final opinion. The trial court seized of the case shall deal with it independently."
13. In Khoob Singh s/o Kanhaiya v. The State of M.P. in MCRC NO. 26900 of 2017, the Division Bench of High Court of Madhya Pradesh at Jabalpur (presided by the Chief Justice Hemant Gupta, as his Lordship then was) held as under:- “...an application under Section 311 of the Code can be filed at any stage of trial even after conclusion of the argument as the trial is complete only after the judgment is announced. Section 353 of the Code contemplates that the judgment in every trial shall be pronounced in an open Court immediately after termination of the trial. Though the recording of the witnesses may be complete but the trial concludes only after pronouncement of the judgment.” (Emphasis added)
14. From the above enunciation of law, it is crystal clear that Section 311 Cr.P.C provides wide discretionary power to the Court to reach a fair and just decision in the case. There is no limitation as to the stage at which the power can be exercised or the manner for exercising the same.
15. Learned counsel for the petitioner/CBI has submitted that the CDs containing the above voice samples S[1] & S[2] and voice recordings Q[1] & Q[2] had already been filed and placed on record before the Trial Court. It is only the requisite certificate under Section 65B of the Indian Evidence Act, 1872 which needs to be filed in support of the same to establish the admissibility of the electronic record contained in the aforesaid CDs.
16. Sections 65A & 65B of the Indian Evidence Act, 1872 were inserted by Act 21 of 2000. It provided that the computer generated records, if proved by the manner laid down in Section 65-B, become admissible in evidence.
17. In Sonu @ Amar v. State of Haryana reported as (2017) 8 SCC 570, the Supreme Court was dealing with an argument that the call details record (CDR) collected by the prosecution were not admissible in evidence, as they were not certified in accordance with sub-Section (4) of Section 65-B of the Evidence Act. It was argued on behalf of the accused that the objections raised by him pertain to inadmissibility of the document and not its mode and manner of proof. While refuting the above submission, the Court held as under:- “32. It is nobody’s case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the Trial Court without a certificate as required by Section 65B (4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court couldhave given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned Senior Counsel for the State referred to statements under Section 161 Cr. P.C. 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section
18. In Union of India & Others v. CDR. Ravindra V. Desai, reported as (2018) 16 Supreme Court Cases 273, the Supreme Court re-affirmed its view taken in Sonu (supra).
19. In State of Karnataka v. M.R.Hiremath reported as 2019 7 SCC 515, the Supreme Court was seized with a case, wherein absence of certificate under Section 65-B of the Evidence Act, the High Court quashed the proceedings under Section 482 Cr.PC on the ground that the prosecution was precluded from supplying any certification (at this point of time) since that would be an after-thought and also that no other evidence was available in the said case. While setting aside the decision of the High Court, it was held as under: “14. The provisions of Section 65B came up for interpretation before a three judge Bench of this Court in Anwar P.V. vs. P.K.Basheer (2014) 10 SCC 473.Interpreting the provision, this Court held: “14...Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65-A, can be proved only in accordance with the procedure prescribed under Section 65-B. Section 65-B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. “ Section 65B(4) is attracted in any proceedings “where it is desired to give a statement in evidence by virtue of this section”. Emphasising this facet of sub-section (4) the decision in Anvar holds that the requirement of producing a certificate arises when the electronic record is sought to be used as evidence. This is clarified in the following extract from the judgment: (Anwar P.V. case, SCC P.434, para 16)
16. The same view has been reiterated by a two judge Bench of this Court in Union of India and Others v CDR Ravindra V Desai
6. The Court 5 (2014) 10 SCC 473 6 (2018) 16 SCC 272 emphasised that non-production of a certificate under Section 65B on an earlier occasion is a curable defect. The Court relied upon the earlier decision in Sonu alias Amar v State of Haryana, in which it was held: (Sonu case, SCC p.584, para 32) “32.The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency.” (emphasis supplied)
17. Having regard to the above principle of law, the High Court erred in coming to the conclusion that the failure to produce a certificate under Section 65B(4) of the Evidence Act at the stage when the charge-sheet was filed was fatal to the prosecution. The need for production of such a certificate would arise when the electronic record is sought to be produced in evidence at the trial. It is at that stage that the necessity of the production of the certificate would arise”.
20. Sh. Amitosh Kumar, Sr. Scientific Officer, Grade-II (Physics), CFSL was examined as PW-5 on 17.07.2014. During his deposition, the above CDs were exhibited. The respondents did not raise any objection at that stage when the CDs were exhibited. It is only during the crossexamination, a suggestion was given to the witness that at the time of his examination, he did not provide any certificate under Section 65-B of the Indian Evidence Act.
21. From a perusal of the records, it is evident that the CDs containing the voice samples and voice recordings were filed and placed on record even before the charges were framed. The CDs were exhibited during the prosecution evidence and no objection was taken at that time. The accused persons were aware of the said documentary evidence available on the record. The prosecution evidence was closed on 01.05.2019 whereafter, the statement of the accused persons was recorded on 16.05.2019 and the case was fixed for recording of the defence evidence on 01.07.2019. The petitioner/CBI moved an application under Section 311 Cr.P.C. on 01.07.2019 itself. By filing the aforesaid application, the petitioner/CBI was not placing any new evidence on the record. The respondents throughout the trial were aware of the availability of the CDs on the record.
22. The trial court erred in observing that the defence evidence having been recorded, allowing the application of the petitioner at that stage, would amount to filling up the lacuna in the case and would cause prejudice to the accused persons. The trial court ought to have immediately decided the petitioner’s application under Section 311 Cr.P.C when it was filed instead of going ahead with the recording of the defence evidence. The approach of the trial court in this regard is clearly faulty.
23. In the facts and circumstances of the case and in view of the enunciation of law extracted above, I am of the view that the impugned order is liable to be set aside. Consequently, the present petition is allowed. The trial court is directed to recall & summon the aforementioned three witnesses for one date, on which day they shall be examined and cross-examined, if required by the learned counsel for the respondents. It is clarified that the examination and cross-examination of the witnesses shall be concluded on the same date.
24. With these observations, the petition is disposed of.
25. A copy of this order be sent to the trial court immediately.
JUDGE SEPTEMBER 23rd, 2019 ‘ga’/ ‘dc’/na