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REPORTABLE  

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURSIDCITON

CRIMINAL APPEAL NO. 499 OF 2014   

RATANLAL … APPELLANT  

VERSUS

PRAHLAD JAT & ORS. …RESPONDENTS

J U D G M E N T

S.ABDUL NAZEER, J.

1 This appeal is directed against the order dated 22.5.2012 in

S.B. Criminal  Miscellaneous Petition No.1679 of 2012, whereby

the  High  Court  of  Rajasthan  (Jaipur  Bench)  has  allowed  the

criminal miscellaneous petition filed under Section 482 of Code of

Criminal  Procedure,  1908  and  has  set  aside  the  order  dated

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24.04.2012 passed by Additional Sessions Judge (Fast – Track),

Sikar.

2. A  charge  sheet  No.22  of  2009  dated  20.3.2009  was

presented  under  Sections  302,  201,  342,  120-B  IPC  against

respondent Nos.1 and 2 and three others.  Charges have been

framed under the aforesaid Sections against the accused persons.

Statements of 28 witnesses have been recorded in the trial.  The

statements of Sawarmal and Chandri have been recorded as PW4

and PW5 respectively. Thereafter, both moved applications before

the Sessions Judge under Section 311 of Cr.P.C. for re-recording

their  statements  on  the  ground  that  the  previous  statements

were made under the influence of the police. In the applications,

the witnesses have stated that respondent Nos.1 and 2 had no

role in the incident.  

3. The Sessions Judge by the order dated 24.4.2012, dismissed

the  applications  observing  that  the  28  witnesses  had  already

been  examined  in  the  case  so  far.  The  witnesses  were  also

cross-examined at length and it cannot be said that they were in

any kind of pressure and that the applications were filed with a

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view to favour the accused persons. Prahlad Jat and Mahavir, the

two accused persons, moved the petition before the High Court

for quashing the said order and the High Court has allowed the

applications of PW4 and PW5.  

4. Learned counsel for the appellant, urged that PW4 and PW5

were examined in the Court on different dates in the months of

November and December 2010 and in March 2011. Out of total

35 witnesses, 28 witnesses have already been examined and they

were cross-examined at length. PWs 4 and 5 filed applications

before the trial court for further examination on 27.2.2012 and

26.3.2012  respectively.  During  police  investigation  and

examination conducted by the prosecution, they had supported

the prosecution story.  The applications have been filed with an

intention  to  provide  assistance  to  the  accused  persons  which

cannot be permitted in law. The applications are highly belated

and  no  reason,  whatsoever, has  been  assigned  for  the  delay.

Therefore, the High Court was not justified in setting aside the

well-reasoned order of the Sessions Judge.

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5. On  the  other  hand,  learned  counsel  appearing  for

respondent No.4 submits that the appellant has no locus standi to

file  this  appeal.   It  is  contended that  the Sessions  Judge has

ample  power  to  examine  or  re-examine  any  witness  under

Section 311 of the Cr.P.C. to bring on record the best possible

evidence to meet the ends of justice.  Keeping this principle in

mind the High Court has allowed the petition.  Learned counsel

appearing for the third respondent has supported the case of the

appellant.  We have carefully considered the arguments of the

learned counsel made at the Bar.  

6. The appellant is the paternal brother of the deceased and is

one of the prosecution witnesses.  The evidence of PW4 and PW5

was recorded on different dates in the months of November and

December 2010 and in March 2011.  Both of them had supported

the case of the prosecution.   After passage of about 14 months,

PW4 and PW5 filed applications under Section 311 of the Cr.P.C.,

inter alia, praying for their re-examination as witnesses for the

reason that the statements recorded earlier were made on the

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instructions  of  the  police.  The  Sessions  Judge  dismissed  the

application by holding as under:    

“The  charges  have  already  been  framed under  sections  302,  201,  342,  120  B  IPC against the accused persons.  Statements of 28 witnesses have already been recorded in the trial.  The statements of applicant namely Sawarmal  has  already  been  recorded  as witness PW4 and the statements of applicant namely  Chandri  have  also  already  been recorded  as  witness  PW5.   Thereafter, the said  applications  have  been  filed.   Said witnesses have already undergone a lengthy cross  examination.  During  the  police investigation and examination conducted by the  prosecution,  wherein  they  have supported prosecution story, it cannot be said that at such time, the witnesses were under any pressure.   In such circumstances,  it  is not justified to make the Court as weapon to adjudicate in own favour and the above both applications  are  without  any  merit  and presented  with  the  intention  to  provide assistance  to  the  accused  persons,  due  to which,  the  same  are  not  liable  to  be admitted.   Resultant,  the  above  presented both  applications  dated  27.02.2012  and 26.03.2012 under section 311 CrPC on behalf of  the  applicants  are  not  liable  to  be admitted,  therefore,  the  same  are dismissed”.

This order of the Sessions Judge has been set aside by the High

Court.

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7. Having regard to the contentions urged, the first question

for  consideration  is  whether  the  appellant  has  locus  standi to

challenge the order of the High Court.

8. In Black’s Law Dictionary, the meaning assigned to the term

‘locus standi’ is ‘the right to bring an action or to be heard in a

given forum’.  One of the meanings assigned to the term ‘locus

standi’  in  Law Lexicon of  Sri  P.Ramanatha Aiyar, is  ‘a  right  of

appearance in a Court of justice’.  The traditional view of  locus

standi has been that the person who is aggrieved or affected has

the standing before the court, that is to say, he only has a right

to  move  the  court  for  seeking  justice.  The  orthodox  rule  of

interpretation regarding the locus standi of a person to reach the

Court  has  undergone  a  sea  change  with  the  development  of

constitutional  law  in  India  and  the  Constitutional  Courts  have

been adopting a  liberal  approach in  dealing  with  the  cases  or

dislodging  the  claim  of  a  litigant  merely  on  hyper-technical

grounds.  It is now well-settled that if the person is found to be

not merely a stranger to the case, he cannot be non-suited on the

ground of his not having locus standi.  

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9. However, criminal trial is conducted largely by following the

procedure laid down in Cr.P.C.  Locus standi of the complaint is a

concept  foreign  to  criminal  jurisprudence.  Anyone  can  set  the

criminal  law  in  motion  except  where  the  statute  enacting  or

creating  an  offence  indicates  to  the  contrary.  This  general

principle is founded on a policy that an offence, that is an act or

omission made punishable by any law for the time being in force,

is not merely an offence committed in relation to the person who

suffers  harm  but  is  also  an  offence  against  the  society.

Therefore, in respect of such offences which are treated against

the  society,  it  becomes  the  duty  of  the  State  to  punish  the

offender.  In A.R. Antulay v. Ramdas Sriniwas Nayak & Anr.

(1984)  2  SCC  500,  a  Constitution  Bench  of  this  Court  has

considered this aspect as under:-  

“In other words, the principle that anyone can  set  or  put  the  criminal  law in  motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made  punishable  by  any  law  for  the  time being in force [See Section 2(n) CrPC] is not merely an offence committed in relation to the person who suffers harm but is also an

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offence  against  society. The  society  for  its orderly  and  peaceful  development  is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken  in  the  name  of  the  State representing the people which would exclude any  element  of  private  vendetta  or vengeance.  If  such  is  the  public  policy underlying penal statutes, who brings an act or omission made punishable by law to the notice  of  the  authority  competent  to  deal with it,  is  immaterial  and irrelevant unless the  statute  indicates  to  the  contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait-jacket formula of locus  standi  unknown  to  criminal jurisprudence,  save  and  except  specific statutory exception”.  

10. In  Manohar Lal v.  Vinesh Anand & Ors.  (2001) 5 SCC

407, this Court has held that doctrine of  locus standi is totally

foreign to criminal jurisprudence.  To punish an offender in the

event of commission of an offence is to subserve a social need.

Society cannot afford to have a criminal escape his liability since

that would bring about a state of social pollution which is neither

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desired nor warranted and this is irrespective of the concept of

locus.

11. In  Arunachalam v.  P.S.R.  SADHANANTHAM  &  ANR.

(1979) 2 SCC 297, this Court has considered the competence of a

private  party,  as  distinguished  from  the  State  to  invoke  the

jurisdiction  of  this  Court  under  Article  136 of  the  Constitution

against a judgment of acquittal by the High Court.  It was held

that appellate power vested in the Supreme Court under Article

136  of  the  Constitution  is  not  to  be  confused  with  ordinary

appellate  power  exercised  by  appellate  courts  and  appellate

tribunals under specific statutes.  Article 136 of the Constitution

vests the Supreme Court with a plentitude of plenary, appellate

power over all Courts and Tribunals in India. The power is plenary

in the sense that there are no words in Article 136 itself qualifying

that power.  But, the very nature of the power has led the Court

to set limits to itself within which it has to exercise such power.

The power is vested in the Supreme Court but the right to invoke

the Court’s jurisdiction is vested in no one.  The exercise of the

power  of  the  Supreme  Court  is  not  circumscribed  by  any

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limitation  as  to  who may invoke it.  The Court  found that  the

judgment  of  acquittal  by  the  High  Court  has  led  to  serious

miscarriage of justice.  Therefore, it was held that Supreme Court

cannot refrain from doing its duty and abstain from interfering on

the ground that a private party and not the State has invoked the

Court’s jurisdiction.   

12. The  accused  in  Arunachalam (supra)  had  filed  a  writ

petition under Article 32 contending that the Supreme Court has

no power to grant special leave to the brother of the deceased.

This writ petition was decided by a Constitution Bench in P.S.R

Sadhanantham v.  Arunachalam & Anr.  (1980)  3  SCC 141.

Rejecting  the  contention  of  the  petitioner, this  Court  held  as

under:-

“In  express  terms,  Article  136  does  not confer a right of appeal on a party as such but it confers a wide discretionary power on the  Supreme  Court  to  interfere  in  suitable cases.  It  is  residuary  power  and  is extraordinary  in  its  amplitude.   But  the Constitution  makers  intended  in  the  very terms of Article 136 that it shall be exercised by  the  highest  judges  of  the  land  with scrupulous  adherence  to  judicial  principles well  established  by  precedents  in  our

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jurisprudence.  Article 136 has a composite structure of power-cum-procedure inasmuch as there is an in-built prescription of exercise of judicial discretion and mode of hearing.  It is  fair to assume that while considering the petition under Article 136 the court will pay attention  to  the  question  of  liberty,  the person who seeks such leave from the court, his  motive  and  his  locus  standi  and  the weighty factors which persuade the court to grant special leave. When this conspectus of processual  circumstances  and  criteria  play upon  the  jurisdiction  of  the  court  under Article 136, it is reasonable to conclude that the desideratum of fair procedure implied in Article 21 is adequately answered.  Though parties  promiscuously  ‘provoke’  this jurisdiction, the court parsimoniously invokes the  power.  Moreover, the  court  may  not, save in special situations, grant leave to one who is not eo nomine a party on the record. Thus,  procedural  limitations  exist  and  are governed by well-worn rules of guidance”.

13. In Ramakant Rai v.  Madan Rai  & Ors.  (2003) 12 SCC

395, and  Esher Singh v. State of A.P. (2004) 11 SCC 585, it

was held that the Supreme Court can entertain appeals against

the judgment of acquittal by the High Court at the instance of

interested parties also.  The circumstance that Criminal Procedure

Code does not provide for an appeal to the High Court against an

order  of  acquittal  by  a  subordinate court  at  the instance of  a

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private  party  has  no  relevance  to  the  question  of  power  of

Supreme Court under Article 136.  

14. In Amanullah and Anr. v. State of Bihar and Ors. (2016)

6 SCC 699, this Court has held that the aggrieved party cannot

be left to the mercy of the State to file an appeal.  It was held as

under :-

“19…… Now turning our attention towards the criminal trial, which is conducted, largely, by following the  procedure  laid  down in  CrPC. Since,  offence is  considered to be a wrong committed  against  the  society,  the prosecution  against  the  accused  person  is launched by the State.  It is the duty of the State  to  get  the  culprit  booked  for  the offence committed by him.  The focal point, here, is that if the State fails in this regard and  the  party  having  bona  fide  connection with the cause of action, who is aggrieved by the order of the court cannot be left at the mercy of the State and without any option to approach  the  appellate  court  for  seeking justice”.

15. It is thus clear that Article 136 does not confer a right to

appeal on any party but it confers a discretionary power on the

Supreme Court to interfere in suitable cases.  The exercise of the

power of the court is not circumscribed by any limitation as to

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who may invoke it.  It does not confer a right to appeal, it confers

only a right to apply for special leave to appeal.  Therefore, there

was no bar for the appellant to apply for special leave to appeal

as  he  is  an  aggrieved  person.  This  Court  in  exercise  of  its

discretion granted permission to the appellant to file the special

leave  petition  on  03.08.2012  and  leave  was  granted  on

24.02.2014.

16. That brings us to the next question as to whether the High

Court  was  justified  in  setting  aside  the  order  of  the  Sessions

Judge and allowing the application filed by PWs 4 and 5 for their

re-examination.  For ready reference Section 311 of the 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  this  Code, summon  any  person  as  a  witness,  or examine  any  person  in  attendance,  though not  summoned as  a  witness,  or  recall  and re-examine  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”.

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17. In order to enable the court to find out the truth and render

a just decision, the salutary provisions of Section 311 are enacted

whereunder any court by exercising its discretionary authority at

any stage of inquiry, trial or other proceeding can summon any

person as witness or examine any person in attendance though

not summoned as a witness or recall or re-examine any person

already examined who are expected to  be able  to  throw light

upon the matter in dispute.   The object  of  the provision as a

whole  is  to  do  justice  not  only  from the point  of  view of  the

accused and the prosecution but also from the point of view of an

orderly society.  This power is to be exercised only for strong and

valid  reasons  and  it  should  be  exercised  with  caution  and

circumspection.   Recall  is  not  a  matter  of  course  and  the

discretion  given  to  the  court  has  to  be  exercised  judicially  to

prevent failure of justice.   Therefore, the reasons for exercising

this power should be spelt out in the order.

18. In  Vijay  Kumar v.  State  of  Uttar  Pradesh  and  Anr.,

(2011) 8 SCC 136, this Court while explaining scope and ambit of

Section 311 has held as under:-

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“Though Section 311 confers vast discretion upon the court and is expressed in the widest possible  terms,  the  discretionary  power under the said section can be invoked only for the ends of justice.  Discretionary power should  be  exercised  consistently  with  the provisions  of  CrPC  and  the  principles  of criminal  law.  The  discretionary  power conferred  under  Section  311  has  to  be exercised judicially for reasons stated by the court and not arbitrarily or capriciously”.

19. In  Zahira Habibullah Sheikh (5) and Anr.  v.  State of

Gujarat  and  Others,  (2006)  3  SCC  374,  this  Court  has

considered the concept underlining under Section 311 as under:-

 “The  object  underlying  Section  311  of  the Code  is  that  there  may  not  be  failure  of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses  examined  from  either  side. The  determinative  factor  is  whether  it  is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise  of  the  powers  of  the  court  to summon a witness under the section merely because  the  evidence  supports  the  case  of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the  Code  and  empowers  the  Magistrate  to

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issue summons to any witness at any stage of  such  proceedings,  trial  or  enquiry.  In Section  311  the  significant  expression  that occurs is “at any stage of any inquiry or trial or other proceeding under this Code”.  It is, however, to be borne in mind that whereas the section confers a very wide power on the court  on  summoning  witnesses,  the discretion  conferred  is  to  be  exercised judiciously,  as  the  wider  the  power  the greater  is  the  necessity  for  application  of judicial mind”.

20. In  State (NCT of Delhi) v.  Shiv Kumar Yadav & Anr.,

(2016) 2 SCC 402, it was held thus:-    

“……………  Certainly, recall could be permitted if essential for the just decision, but not on such  consideration  as  has  been  adopted  in the  present  case.   Mere  observation  that recall was necessary “for ensuring fair trial” is  not  enough  unless  there  are  tangible reasons to show how the fair  trial  suffered without  recall.  Recall  is  not  a  matter  of course and the discretion given to the court has  to  be  exercised  judiciously  to  prevent failure  of  justice  and not  arbitrarily.  While the  party  is  even  permitted  to  correct  its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice  has  to  be  bona fide  and has  to  be balanced  carefully  with  the  other  relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the

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trial.  Having regard to these considerations, there  is  no  ground  to  justify  the  recall  of witnesses already examined”.

21. The delay in filing the application is one of the important

factors  which  has  to  explained  in  the  application.  In  Umar

Mohammad & Ors. v. State of Rajasthan, (2007) 14 SCC 711,

this Court has held as under:-                  

“Before parting, however, we may notice that a contention has been raised by the learned counsel for the appellant that PW 1 who was examined in Court on 5-7-1994 purported to have filed an application on 1-5-1995 stating that  five  accused  persons  named  therein were  innocent.  An  application  filed  by  him purported  to  be  under  Section  311  of  the Code of Criminal Procedure was rejected by the  learned  trial  Judge  by  order  dated 13-5-1995.  A  revision  petition  was  filed thereagainst and the High Court also rejected the said contention. It is not a case where stricto sensu the provisions of Section 311 of the  Code of  Criminal  Procedure could  have been  invoked.  The  very  fact  that  such  an application  was  got  filed  by  PW  1  nine months after his deposition is itself pointer to the  fact  that  he  had  been  won  over. It  is absurd to contend that he, after a period of four  years  and  that  too  after  his examination-in-chief  and  cross-examination was complete, would file an application on his

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own  will  and  volition.  The  said  application was, therefore, rightly dismissed”.

22. Coming to the facts of the present case, PWs 4 and 5 were

examined  between  29.11.2010  and  11.3.2011.  They  were

cross-examined  at  length  during  the  said  period.   During  the

police investigation and in their evidence, they have supported

the prosecution story.  The Sessions Judge has recorded a finding

that  they  were  not  under  any  pressure  while  recording  their

evidence.  After  a  passage  of  14  months,  they  have  filed  the

application  for  their  re-examination  on  the  ground  that  the

statements  made  by  them  earlier  were  under  pressure.  They

have  not  assigned  any  reasons  for  the  delay  in  making

application. It is obvious that they had been won over.  We do not

find  any  reasons  to  allow  such  an  application.   The  Sessions

Judge, therefore, was justified in rejecting the application. In our

view, High Court was not right in setting aside the said order.

23. In  the  result,  the  appeal  succeeds  and  it  is  accordingly

allowed.  The  order  of  the  High  Court  in  S.B.  Criminal

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Miscellaneous  Petition  No.1679  of  2012,  dated  22.5.2012  is

hereby set aside.  All pending applications also stand disposed of.

24. We find from the records that after the order of the High

Court,  PWs 4 and 5 were re-examined before the Trial  Court.

The Trial  Court is directed to proceed with the matter without

taking into consideration the evidence of PWs 4 and 5 recorded

after the order of the High Court.

………………………………J.                                               (J. CHELAMESWAR)

  ………………………………J.                            (S. ABDUL NAZEER)

New Delhi; September 15, 2017.