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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1307 OF 2014 [Arising out of Special Leave Petition (Crl.) No.8395 of 2012]

Mannan Sk & Ors. ... Appellants

Vs.

State of West Bengal & Anr. … Respondents

J U D G M E N T

(SMT.) RANJANA PRAKASH DESAI, J.

1. Leave granted.

2. In  this  appeal  order  dated  11/5/2012  passed  by  the  

High Court of Calcutta is under challenge.  By the impugned  

order the High Court reversed the trial court’s order which  

had rejected the application filed by the prosecution under  

Section 311 of the Code of Criminal Procedure, 1973  (for  

short, ‘the code’) to recall the Investigating Officer.

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3 A petty altercation over a tape recorder resulted in a  

major incident in which bombs were hurled at Rupchand Sk –  

the  father  of  PW8-Nurul  Islam.   Incident  occurred  on  

13/12/1992.   Rupchand Sk  suffered  grievous  injuries.   He  

was taken to a local hospital. From there he was shifted to  

Berhampore  hospital  where  he  breathed  his  last.  On  

14/12/1992 a complaint was lodged by the son of deceased  

Rupchand Sk -  PW8-Nurul  Islam with  Raghunathpur  Police  

Station on the basis of which FIR was registered. In the FIR  

PW8-Nurul Islam named nine persons.  Initially the case was  

registered under Sections 447, 326 read with Section 34 of  

the  Penal  Code  and  Sections  3  and  4  of  the  Explosives  

Substances Act.   After  the death of Rupchand Sk,  Section  

304 of the Penal Code was added.  

4. After the charges were framed the trial began.   PW15-

SI Dayal Mukherjee, the Investigating Officer, was examined  

on 18/2/2011.  He was re-examined on 17/5/2011. He stated  

in  his  evidence that  he had recorded deceased Rupchand  

Sk’s  statement  at  the  scene  of  offence.  In  the  cross-

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examination  he  stated  that  he  had  recorded  one  page  

statement of deceased Rupchand Sk.  This statement was  

not brought on record.     

5. One  month  thereafter  on  16/6/2011  the  prosecution  

moved an application for recalling PW15-SI Dayal Mukherjee  

because  the  prosecution  wanted  to  bring  on  record  

statement  of  deceased  Rupchand  Sk  which  it  had  

inadvertently omitted to do.   Needless to say that it is the  

prosecution case that after death of Rupchand Sk the said  

statement became his dying declaration.

6. The trial court vide order dated 22/6/2011 rejected the  

said application.  The trial court observed that the case was  

at the stage of argument and no explanation was given by  

the  prosecution  as  to  why  the  statement  of  deceased  

Rupchand Sk was not brought on record by the Investigating  

Officer.  The trial court noted that PW15-SI Dayal Mukherjee  

was examined on 18/2/2011 and re-examined on 17/5/2011.  

According to the trial court if the prosecution is allowed to  

recall  PW15-SI  Dayal  Mukherjee  that  would  enable  the  

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prosecution to fill-up the lacuna.  The trial  court relied on  

State  of  Rajasthan  v.  Doulat  Ram  1   and  Mohan  Lal  

Shamji Soni v. Union of India  2  .  The trial court observed  

that  re-examination  of  PW15-  SI  Dayal  Mukherjee  is  not  

essential for the just decision of the case.   

7. Being aggrieved by this order the complainant filed an  

application under Section 401 read with Section 482 of the  

Code in the High Court.  The High Court reversed the trial  

court’s order.  The High Court observed that non-exhibiting  

of the statement of deceased Rupchand Sk was mistake of  

the prosecution and no advantage can flow from the said  

mistake to the accused.  The High Court further observed  

that existence of the statement was known to the accused  

and, hence, no prejudice would be caused to them.  The said  

order is challenged in this appeal by the appellants-accused.  

8. We have heard learned counsel for the parties at some  

length.   We have perused their  written  submissions.   Mr.  

Pijush K. Roy, learned counsel for the appellants submitted  

1 AIR 1980 SC 1314  2 AIR 1991 SC 1346

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that the incident took place 22 years back.  The statements  

of witnesses were recorded under Section 161 of the Code  

within a week from the date of incident.  The Investigating  

Officer was examined and cross-examined.  The case is set  

for final arguments and,  therefore,  it  would be unjust and  

unfair  to  recall  the Investigating Officer.   His  recall  would  

cause serious prejudice to the appellants.  This is clearly an  

attempt to fill-up the lacuna which should not be allowed.  

Counsel further submitted that PW15-SI Dayal Mukherjee has  

retired from the service in the year 2010 and he is presently  

about 68 years of age.  He might have forgotten the entire  

episode.   It will be easy for the complainant to tutor him.  

Counsel submitted that Section 311 of the Code is not meant  

for putting the accused in a disadvantageous position.  This  

would  lead  to  miscarriage  of  justice.  In  support  of  his  

submissions  counsel  relied  on  Chandran  v.  State  of  

Kerala  3  ,  State of Rajasthan v. Daulat Ram,   Mohan Lal  

Shamji Soni v. Union of India & Ors,  Mishrilal and ors.  

3 (1985) Cr L.J. 1288

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v.  State of M.P. and ors  4  ,     Mir Mohammad Omar and  

ors.   v.  State of West Bengal  5  .   

9. Mr. Anip Sachthey, learned counsel appearing for the  

State of West Bengal on the other hand submitted that the  

application  was  made  just  one  month  after  the  re-

examination of the Investigating Officer.  Therefore, there is  

no delay in recalling him.  Statement of deceased Rupchand  

Sk was not exhibited due to inadvertence and  hence for just  

decision of the case it is essential to recall the Investigating  

Officer.   Counsel submitted that this would not amount to  

filling-up the lacuna.  In support of his submissions counsel  

relied on P. Sanjeeva Rao  v. State of Andhra Pradesh  6  ,    

Hanuman Ram v. State of Rajasthan & Ors  7  ., Rajendra    

Prasad v. Narcotic Cell  8   and Mohanlal Shamji Soni    

10. The aim of every court is to discover truth.  Section 311  

of  the  Code  is  one  of  many  such  provisions  of  the  Code  

which strengthen the arms of a court in its effort to ferret out  

4 2005(10) SCC 701 5 1989 (4) SCC 436 6 2012(7) SCC 56 7 2008(15) SCC 652 8 1999(6) SCC 110

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the truth by procedure sanctioned by law.  It is couched in  

very wide terms.  It empowers the court at any stage of any  

inquiry,  trial  or  other  proceedings  under  the  Code  to  

summon any person as a witness or examine any person in  

attendance, though not summoned as witness or recall and  

re-examine already examined witness.  The second part of  

the Section uses the word ‘shall’.  It says that the court shall  

summon  and  examine  or  recall  or  re-examine  any  such  

person if his evidence appears to it to be essential to the just  

decision  of  the  case.   The  words  ‘essential  to  the  just   

decision of  the case’  are the key words.   The court must  

form an opinion that for the just decision of the case recall or  

re-examination of the witness is necessary. Since the power  

is wide it’s exercise has to be done with circumspection.  It is  

trite that wider the power greater is the responsibility on the  

courts which exercise it.  The exercise of this power cannot  

be untrammeled and arbitrary but must be only guided by  

the object of arriving at a just decision of the case.  It should  

not cause prejudice to the accused.  It should not permit the  

prosecution to fill-up the lacuna.  Whether recall of a witness  

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is for filling-up of a lacuna or it is for just decision of a case  

depends on facts  and circumstances of  each case.   In  all  

cases it is likely to be argued that the prosecution is trying to  

fill-up a lacuna because the line of demarcation is thin.  It is  

for the court to consider all  the circumstances and decide  

whether the prayer for recall is genuine.

11. Rather  than referring to  all  the judgments  which are  

cited before us,  we would concentrate on  Mohanlal Soni  

which  takes  into  consideration  relevant  judgments  on  the  

scope  of  Section  311  and  lays  down  the  principles.  

Mohanlal Soni is followed in all subsequent judgments.  In  

Mohanlal  Soni this  Court  was  considered  the  scope  of  

Section 540 of the  Code of Criminal Procedure, 1898 ( the  

old code) which is similar to Section 311 of the Code.  This  

Court  observed  that  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.  The  

relevant observations of this Court are as under:

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“… … …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  re-examine  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.”

This Court further observed as under:

“… … … Though Section 540 (Section 311 of the  new Code)  is,  in  the  widest  possible  terms  and   calls  for  no limitation,  either  with  regard to  the   stage at which the powers of the court should be   exercised, or with regard to the manner in which   they  should  be  exercised,  that  power  is   circumscribed  by  the  principle  that  underlines   Section  540,  namely,  evidence  to  be  obtained  should  appear  to  the  court  essential  to  a  just  decision of the case by getting at the truth by all   lawful  means.  Therefore,  it  should  be  borne  in   mind that the aid of the section should be invoked  only with the object of discovering relevant facts   or obtaining proper proof of such facts for a just   decision of the case and it must be used judicially   and  not  capriciously  or  arbitrarily  because  any   improper or capricious exercise of the power may   lead to undesirable results. Further it is incumbent   that due care should be taken by the court while   

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exercising  the  power  under  this  section  and  it   should not be used for filling up the lacuna left by   the  prosecution  or  by  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 rival side and further   the additional evidence should not be received as   a disguise for a retrial or to change the nature of   the case against either of the parties.”

12. While  dealing  with  Section  311  of  the  Code  in  

Rajendra Prasad this Court explained what is lacuna in the  

prosecution 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.  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.”

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13. Reference must also be made to the observations of  

this Court in  Zahira Habibulla H. Sheikh  and anr.   v.   

State of Gujarat and ors  9   where this Court described the  

scope of Section 311 of the Code as under:  

“Object of the Section is to enable the court to   arrive at  the truth irrespective of  the fact  that   the  prosecution  or  the  defence  has  failed  to   produce some evidence which is necessary for a   just and proper disposal of the case.  The power   is  exercised  and  the  evidence  is  examined  neither to help the prosecution nor the defence,   if the court feels that there is necessity to act in   terms of  Section 311 but only to  subserve the   cause of justice and public interest.  It  is done   with an object of getting the evidence in aid of a   just decision and  to uphold the truth.”

14.  If  we  view  the  present  case  in  light  of  the  above  

judgments, we will have to sustain the High Court’s order.  

PW15-SI  Dayal  Mukherjee stated in  the court  that  he had  

recorded the statement of  deceased Rupchand Sk.   Thus,  

this fact was known to the defence.  He was cross-examined  

by the defence. Inadvertently,  the said statement was not  

brought  on  record  through  PW15-SI  Dayal  Mukherjee.  

Rupchand Sk died after the said statement was recorded.  9 (2004) 4 SCC 158

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The  said  statement,  therefore,  became  very  vital  to  the  

prosecution. It is obvious that the prosecution wants to treat  

it  as a dying declaration.  Undoubtedly,  therefore, it is an  

essential material to the just decision of the case.  Though,  

the fact of the recording of this statement is deposed to by  

PW15-SI Dayal Mukherjee, since due to oversight it was not  

brought on record,  application was made under Section 311  

of the Code praying for recall of PW15-SI Dayal Mukherjee.  

This cannot be termed as an inherent weakness or a latent  

wedge in the matrix of the prosecution case.  No material is  

tried to  be brought on record  surreptitiously to fill-up the  

lacuna.   Since the accused knew that such a statement was  

recorded by PW15-SI Dayal Mukherjee, no prejudice can be  

said  to  have  been  caused  to  the  accused,  who  will  

undoubtedly get a chance to cross-examine PW15-SI Dayal  

Mukherjee.

15. It  is  true  that  PW15-SI  Dayal  Mukherjee  was  once  

recalled but that does not matter.  It does not prevent his  

further recall.   Section 311 of the Code does not put any  

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such limitation on the court.   He can still be recalled if his  

evidence appears  to  the  court  to  be  essential  to  the  just  

decision  of  the  case.   In  this  connection  we  must  revisit  

Rajendra Prasad  where this Court has clarified that the  

court  can  exercise   power  of  re-summoning  any  witness  

even if  it  has  exercised the  said  power  earlier.   Relevant  

observations of this Court run as under:

“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 the 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  resummoning  certain   witnesses  cannot  therefore  be  spurned down or   frowned at.”

16.  It  was  strenuously  contended  that  the  incident  had  

taken place on 13/12/1992 and,  therefore,  the application  

made  after  a  gap  of  22  years  must  be  rejected.   This  

submission  must  be  rejected  because  PW15-SI  Dayal  

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Mukherjee  was  re-examined on  17/5/2011 and application  

for his recall was made just one month thereafter.  It is true  

that  the  incident  is  dated  13/12/1992  and  the  trial  

commenced in 2001.  These are systemic delays which are  

indeed  distressing.   But  once  the  trial  began  and  the  

Investigating  Officer  was  re-examined  on  17/5/2011,  the  

prosecution made an application for recall  just one month  

thereafter.   There  was  no  delay  at  that  stage.  The  

submissions that PW15-SI Dayal Mukherjee has grown old;  

that his memory must not be serving him right; that he can  

be  tutored  are  conjectural  in  nature.   In  any  case,  the  

accused  have  a  right  to  cross-examine  PW15-SI  Dayal  

Mukherjee.   The  accused  are,  therefore,  not  placed  in  a  

disadvantageous position.  

17.  We  must  now  turn  to  the  judgments  cited  by  the  

appellants.  In  State  of  Rajasthan  v.  Daulat  Ram this  

Court was dealing with an appeal from an order of acquittal.  

The prosecution had not proved beyond reasonable doubt  

that the opium seized was the opium which was sent to the  

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public  analyst.   At  the trial  the prosecution had made an  

application under Section 540 of the old Code (Section 311  

of  the  Code)  for  summoning  three  persons  under  whose  

custody the seized samples were kept.  It was rejected by  

the trial  court.   An application was made before the High  

Court  for  additional  evidence  which  was  later  withdrawn.  

This  Court  commented on  the  vacillating  approach of  the  

State  and  observed  that  the  prosecution  should  not  be  

allowed to fill-up the lacunae left at the trial, at the appellate  

or revisional stage. This case turns on its own facts and has  

no application to the present case.  

18.  Mishrilal, on  which  reliance  is  placed  by  the  

appellants, has also no application to this case.  In Mishrilal  

a witness was examined and cross-examined in  a murder  

trial on the same day.  In Juvenile Court where some of the  

juveniles  were  tried,  he  gave evidence subsequently.   He  

stated that he was not aware as to who attacked him.  He  

was recalled by the Sessions Court and confronted with the  

statement  given  by  him before  the  Juvenile  Court  on  the  

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basis of which the accused were acquitted.  This Court did  

not approve of the procedure adopted by the Sessions Court.  

This Court observed that a witness could be confronted only  

with a previous statement made by him.  The day on which  

he was first examined in the Sessions Court, there was no  

such  previous  statement.   This  Court  observed  that  the  

witness must have given some other version before Juvenile  

Court  for  some extraneous  reasons.   He should  not  have  

been given an  opportunity  at  a  later  stage to  completely  

efface the evidence already given by him under oath.  It is  

the wrong procedure and attempt to efface evidence which  

persuaded this Court to observe that once the witness was  

examined in-chief  and cross-examined  fully  such  witness  

should not have been recalled and re-examined to deny the  

evidence  which  he  had  already  given  in  the  court  even  

though he had given an inconsistent statement before any  

other court subsequently.   It  is pertinent to note that this  

Court did not discuss Section 311 of the Code.  

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19. Mir Mohd. Omar has no application to this case as it  

deals with a totally different fact situation.  In that case this  

Court has not considered Section 311 at all.  

20.  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  Rupchand  Sk’s  statement  

recorded by PW15-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.  

21. In the result the appeal is dismissed. Needless to say  

that the interim orders passed by this Court on 15/10/2012,  

03/05/2013  and  27/01/2014  staying  the  impugned  order  

dated 11/05/2012 passed by the Calcutta High Court in CRR  

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No. 2385 of 2011 are vacated.  The trial court shall proceed  

with the case and ensure that it is concluded at the earliest.  

………………………….J. [Ranjana Prakash Desai]

………………………….J. [N.V. Ramana]

New Delhi July 3, 2014  

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