SWAPAN KUMAR CHATTERJEE versus CENTRAL BUREAU OF INVESTIGATION

SWAPAN KUMAR CHATTERJEE

CENTRAL BUREAU OF INVESTIGATION

(Criminal Appeal No. 15 of 2019)

JANUARY 04, 2019

[A. K. SIKRI AND S. ABDUL NAZEER, JJ.]

Code of Criminal Procedure, 1973:

s. 311 – Power under – Scope of – Held: The power shouldbe exercised with great caution and circumspection and should beinvoked by the court only to meet the ends of justice – In the factsof the present case, the application for summoning the witness, oughtto have been rejected.

Allowing the appeal, the Court

HELD: 1. The power conferred under Section 311 Cr.P.C.should be invoked by the court only to meet the ends of justice.The power is to be exercised only for strong and valid reasonsand it should be exercised with great caution and circumspection.The court has vide power under this Section to even recallwitnesses for re-examination or further examination, necessaryin the interest of justice, but the same has to be exercised aftertaking into consideration the facts and circumstances of each case.The power under this provision shall not be exercised if the courtis of the view that the application has been filed as an abuse ofthe process of law. [Para 12][716-F-H]

2. In the instant case, the case was registered in the year1983. 29 prosecution witnesses have already been examined. Theapplication of the prosecution to examine the handwriting expertwas allowed in the year 2004. However, prosecution has failed tocall him in court for his examination. Thereafter, multipleapplications have been filed to summon him and all of them havebeen allowed. However, the prosecution has failed to procurehis attendance in the court. [Para 14][717-B-C]

3. Despite the orders dated 28.07.2011 and 15.09.2014passed by the High Court in criminal revision applications,

Awhereby prosecution was given last opportunity to procureattendance of the witness and it was observed that since the trialis pending for long time, steps must be taken by the trial courtto conclude the trial as expeditiously as possible, the trial courthas allowed the application filed by the prosecution for summoningthe witness, which order has been confirmed by the High Court.BThe High Court ought to have rejected the application of theprosecution for summoning the witness. [Paras 15 and 16][717-D-F]CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.15 of 2019.C

From the Judgment and Order dated 04.05.2017 of the High Courtof at Calcutta in CRR No. 440 of 2015.

P.S. Datta, Sr. Adv., Ms. Anwesha Saha, Fuzail Ahmad Ayyubi,Advs. for the Appellant.

Vikramjeet Banerjee, ASG, V. D. Makheja, Sr. Adv., SachinDSharma, P. K. Dey, T. A. Khan, A. K. Sharma, Mukesh Kumar Maroria,Advs. for the Respondent.

The Judgment of the Court was delivered by

S. ABDUL NAZEER, J. 1. Leave granted.E2. The appellant- Swapan Kumar Chatterjee has challenged theorder dated 04.05.2017 in CRR No. 440/2015 passed by the High Courtat Calcutta, whereby the High Court confirmed the order dated05.12.2014 passed by the Trial Court permitting the examination of onewitness Mr. H.S. Tuteja.

3. Brief facts necessary for disposal of this appeal are as under:

4. complaint was lodged by one Mr. P.N. Khanna before theSuperintendant of Police, Central Bureau of Investigation (for short‘CBI’), Economic Offences Wing, Church Lane Calcutta, where thepresent appellant with others was arrayed as accused in CBI case No.7/E/83 dated 20.08.1983 under Sections 477A/471/468/420/120B of theGIndian Penal Code, 1860. After completion of the investigation,investigating agency filed chargesheet under the aforesaid sections andalso under Section 5(1)(c)(d) read with Section 5(2) of the Preventionof Corruption Act, 1947 against the appellant and three others. The casewas put on trial. Twenty nine prosecution witnesses were examined.HThe Public Prosecutor filed petition praying for examination ofhandwriting expert Mr. H.S. Tuteja, which was allowed and date wasfixed on 24.03.2004 and then to 26.03.2004 for his examination.Prosecution was directed to issue summons to the witnesses well inadvance of the date of evidence. However, Mr. H.S. Tuteja failed toappear before the Court due to which Prosecutor further sought timefor fixing of schedule till next day for his examination. This request ofthe Prosecutor was accepted by the Magistrate with direction that theschedule is fixed on and from 10.05.2004 to 12.05.2004, and prosecutionwas directed to summon all the witnesses including Mr. H.S. Tuteja.The said witness yet again failed to turn up. The Prosecutor did notpray for re-issuing of summons and bailable warrant, but separatepetition was filed by the Prosecutor for re-summoning the witnessesincluding Mr. H.S. Tuteja. Such prayer was considered by the Magistrateas last chance. From then onwards, whenever date is fixed forexamining Mr. H.S. Tuteja, he would fail to turn up and the prosecutionwould invariably come up with petition either praying for time or foradjournment of the matter.

5. Interestingly, this practice has been going on unopposed for aperiod of thirteen years starting from the year 2004. It is necessary tonotice here that the High Court of Calcutta in CRR No. 3436 of 2006disposed of on 28.07.2011 gave last opportunity to the CBI to procureattendance of Mr. H.S. Tuteja. It was observed that in case of failureon the part of the CBI to procure his attendance, and the attendance ofother witnesses and get them examined, the Trial Court will proceedfurther with the trial without granting any further adjournment to theCBI keeping in mind that the case is still pending from the year 1985.

6. However, the Trial Court still allowed the prosecution time topresent their witness Mr. H.S. Tuteja on 03.02.2012, who by now wasnothing short of creature of fiction and whose presence has beenwarranted yet unattained for over decade. Despite summon was dulyserved upon, he was not present on that date also. Again, the matterwas adjourned to 24.02.2012 for his evidence. Even thereafter on severaldates, the CBI failed to produce the said witness.

7. Again, the High Court of Calcutta in Criminal RevisionApplication No.2696 of 2014 dated 15.09.2014 observed that since thetrial is pending in the Trial Court for long time, all steps must be takenby the Trial Court to conclude the trial as expeditiously as possible,preferably within coming six months.

ABC

8. On 25.11.2014, the appellant was examined as DW-1. On thesame day the prosecution again filed an application to examine Mr. H.S.Tuteja. This application was allowed by the Magistrate on 05.12.2014and said order has been confirmed by the High Court.

9. We have heard learned senior counsel and learned ASGBappearing for the parties.

10. Section 311 of the Code of Criminal Procedure, 1973 (forshort ‘the Code’) provides for the power of the court to summon materialwitness or examination person present. It reads as follows:

“311. Power to summon material witness, or examine personCpresent.—Any Court may, at any stage of any inquiry, trial orother proceeding under this Code, summon any person as awitness, or examine any person in attendance, though notsummoned as witness, or recall and re-examine any personalready examined; and the Court shall summon and examineDor recall and re-examine any such person if his evidenceappears to it to be essential to the just decision of the case.”

11. The first part of this Section which is permissive gives purelydiscretionary authority to the criminal court and enables it at any stageof inquiry, trial or other proceedings under the Code to act in one of theEthree ways, namely, (i) to summon any person as witness; or (ii) toexamine any person in attendance, though not summoned as witness;or (iii) to recall and re-examine any person already examined. Thesecond part, which is mandatory, imposes an obligation on the court (i)to summon and examine or (ii) to recall and re-examine any such personif his evidence appears to be essential to the just decision of the case.F

12. It is well settled that the power conferred under Section 311should be invoked by the court only to meet the ends of justice. Thepower is to be exercised only for strong and valid reasons and it shouldbe exercised with great caution and circumspection. The court has videpower under this Section to even recall witnesses for reexamination orGfurther examination, necessary in the interest of justice, but the samehas to be exercised after taking into consideration the facts andcircumstances of each case. The power under this provision shall notbe exercised if the court is of the view that the application has been filedas an abuse of the process of law.

13. Where the prosecution evidence has been closed long backand the reasons for non-examination of the witness earlier is notsatisfactory, the summoning of the witness at belated stage would causegreat prejudice to the accused and should not be allowed. Similarly, thecourt should not encourage the filing of successive applications for recallof witness under this provision.

14. In the instant case, the case was registered in the year 1983.29 prosecution witnesses have already been examined. The applicationof the prosecution to examine Mr. H.S. Tuteja was allowed in the year2004. However, prosecution has failed to keep him in court for hisexamination. Thereafter, multiple applications have been filed to summonhim and all of them have been allowed. However, the prosecution hasfailed to procure his attendance in the court.

15. As mentioned earlier, on 28.07.2011 the High Court of Calcuttagave the prosecution last opportunity to procure his attendance anddeclared that in case of failure on the part of the CBI to procure theattendance of witnesses and get them examined, the Trial Court willproceed further with the trial without granting any further adjournmentto the CBI. Even thereafter, the applications filed by the CBI have beenallowed.

16. On 15.09.2014, yet again, the High Court in criminal revisionapplication observed that since the trial is pending for long time, stepsmust be taken by the trial court to conclude the trial as expeditiously aspossible, preferably within six months. Even thereafter, the trial courthas allowed the application filed by the prosecution for summoning Mr.H.S. Tuteja, which order has been confirmed by the High Court. In ourview, the High Court ought to have accepted the appeal and rejected theapplication of the prosecution for summoning the witness, Mr. H.S. Tuteja.

17. In the result, the appeal succeeds and it is accordingly allowed.The orders of the High Court dated 04.05.2017, as well as of the TrialCourt dated 05.12.2014 are hereby quashed and the application filed bythe Prosecutor for summoning Mr. H.S. Tuteja is hereby dismissed.

Kalpana K Tripathy

Appeal allowed.