REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.688 OF 2019 (Arising out of SLP (Crl.) No. 8315 of 2018)

MANJU DEVI                     ….APPELLANT(S)

VS

STATE OF RAJASTHAN & ANR.          ….RESPONDENT(S)

JUDGMENT  

Dinesh Maheshwari, J.

Leave granted.

2. In Sessions Case No. 05 of 2015 in the Court of Additional Sessions

Judge Ratangarh, District Churu (Rajasthan),  the accused-respondent No. 2

is facing trial for offences under Sections 302, 304-B and 498-A of the Indian

Penal Code (‘IPC’) due to the death of his wife under unnatural circumstances

in  Nigeria.  The  appellant,  mother  of  the  deceased,  moved  an  application

under Section 311 of  the Code of  Criminal  Procedure (‘CrPC’)  in the said

case, seeking summoning of one Dr. I. Yusuf (who had conducted first post-

mortem of the dead-body of the appellant's daughter in Nigeria) through High

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Commission of Nigeria or to record his evidence through video-conferencing,

after issuing a commission for the purpose.  

2.1. By its order dated 31.05.2018, the Trial Court rejected the application so

moved by the appellant, essentially for reasons that the trial was pending for

almost 8 years; and that it was not necessary to record the statement of Dr. I.

Yusuf because a copy of the post-mortem report prepared by him had already

been exhibited. The appellant attempted to question the order so passed by

the Trial Court before the High Court of Judicature for Rajasthan at Jodhpur in

Criminal Miscellaneous Petition No. 2282 of 2018. However, the High Court

dismissed the said petition by its impugned order dated 02.08.2018 with the

observation that there was no reason to interfere in the exercise of discretion

by  the  Trial  Court.  Aggrieved,  the  appellant  has  preferred  this  appeal  by

special leave.    

3. The background aspects, so far relevant for the present purpose, could

be noticed, in brief, as follows:

3.1. The prosecution case is that the deceased daughter of the appellant

was married to the accused-respondent No. 2 on 21.04.2008 at Rajaldesar;

she was residing in her matrimonial home alongwith father and mother of her

husband; and  later on she had shifted to Bangalore and then to Nigeria with

her husband but was regularly harassed with demand for dowry. It is alleged

that on 14.01.2010, the appellant's daughter,  while living with her husband

(the  accused-respondent  No.  2)  in  Nigeria,  died  under  unnatural

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circumstances when she was found hanging from the ceiling fan in her room.

An FIR bearing  No.  10  of  2010  was  lodged  at  Police  Station  Rajaldesar,

District Churu by the husband of appellant (father of the deceased), alleging,

inter alia, that his daughter was harassed with persistent demands for dowry

and she was subjected to cruelty to the extent that it  ultimately led to her

death in Nigeria.  

3.2. The first post-mortem of the dead-body of the appellant's daughter was

conducted  by  Dr.  I.Yusuf  in  Aminu  Kanu  Teaching  Hospital,  Nigeria  on

16.01.2010 who, upon examination, stated his opinion that the cause of death

was "asphyxia secondary to strangulation".  Thereafter, the dead-body of the

appellant's  daughter  was  brought  to  India  where  a  Medical  Board  was

constituted  for  further  post-mortem  but  the  Medical  Board  stated  that  no

definite opinion could be formed regarding the time and cause of death of the

daughter of the appellant. After investigation, charge-sheet was filed against

the respondent No. 2 for the offences under Sections 302, 304-B and 498-A

IPC.

3.3.  In the trial, the prosecution led its evidence and various witnesses were

examined but as the members of the Board were unable to give any definite

opinion as to the cause of death, an application under Section 311 CrPC was

moved by the appellant, for issuance of summons to the said Dr. I. Yusuf,

Department of Pathology, Aminu Kanu Teaching Hospital,  Nigeria, who had

first conducted the post-mortem of the dead-body of the appellant's daughter

in Nigeria, so that he may be examined as a medical witness.  It was also

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submitted  in  the  alternative  that  the  evidence  of  the  said  doctor  may  be

recorded through video-conferencing.  

4. As noticed,  in  its  impugned order  dated  31.05.2018,  the  Trial  Court

rejected  the  said  application  while  observing  that  the  matter  was  pending

since the year 2010 and, as the photocopy of the post-mortem report prepared

in  Nigeria  was  available  on  record,  it  was  not  necessary  to  record  the

statement of Dr. I. Yusuf. The Trial Court also observed that the effect of want

of original post-mortem report shall be examined at the time of final decision of

the matter.

5. Against the order aforesaid, the appellant filed a criminal miscellaneous

petition  under  Section  482  CrPC  before  the  High  Court  of  Judicature  for

Rajasthan at  Jodhpur  while  contending,  inter  alia,  that  Dr.  I.  Yusuf  was a

material witness in the case and the prosecution had illegally omitted to cite

him as a witness. However, the petition was dismissed by the High Court by

way of its impugned order dated 02.08.2018 while observing that in the overall

facts  and circumstances  of  the case,  the  discretion exercised by the  Trial

Court called for no interference.

6. Assailing the order aforesaid, the learned counsel for the appellant has

strenuously  argued that  the Trial  Court  and the  High Court  have failed  to

appreciate the relevance of the evidence of Dr. I Yusuf, who conducted the

first  post-mortem  of  the  dead-body  of  the  daughter  of  appellant;  and  his

testimony is essential to arrive at the just decision in this case. The learned

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counsel would submit that the order of the Trial Court rejecting the application

on the ground that the trial  was pending for last about 8 years is not of a

judicious approach to the case; and that the Trial Court should ensure that the

material evidence comes on record so as to arrive at just conclusion.  

7. Per contra, learned counsel for the accused-respondent No. 2 has duly

supported the order impugned with the submissions that the appellant only

seeks protraction of the trial with the baseless application under Section 311

CrPC.  According  to  the  learned  counsel,  the  Trial  Court  has  consciously

exercised its discretion in rejecting the application and the High Court  has

rightly declined to interfere.

8. Having  given  thoughtful  consideration  to  the  rival  submissions  and

having examined record with reference to the law applicable, we find it difficult

to  approve  the  orders  impugned;  and  it  appears  just  and  proper  that  the

application moved in this  matter  under Section 311 CrPC be allowed with

direction  to  the  Trial  Court  to  ensure  that  the  testimony  of  the  doctor

conducting first post-mortem comes on record.  

9. Section 311 CrPC reads 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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9.1. It needs hardly any emphasis that the discretionary powers like those

under  Section  311  CrPC  are  essentially  intended  to  ensure  that  every

necessary and appropriate measure is taken by the Court to keep the record

straight and to clear any ambiguity in so far as the evidence is concerned as

also  to  ensure  that  no  prejudice  is  caused  to  anyone.  The  principles

underlying  Section  311  CrPC  and  amplitude  of  the  powers  of  the  Court

thereunder  have  been  explained  by  this  Court  in  several  decisions1.  In

Natasha Singh v. CBI (State) : (2013) 5 SCC 741, though the application for

examination  of  witnesses  was  filed  by  the  accused  but,  on  the  principles

relating to the exercise of  powers under Section 311, this Court  observed,

inter alia, as under:-

" 8.  Section  311  CrPC  empowers  the  court  to  summon  a material witness, or to examine a person present at “any stage” of  “any  enquiry”,  or  “trial”,  or  “any  other  proceedings”  under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, the CrPC has conferred a very wide discretionary power upon the court in this respect, but such  a  discretion  is  to  be  exercised  judiciously  and  not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.

***      ***                     **"

1 Vide  Mohanlal Shamji Soni v. Union of India:  1991 Supp (1) SCC 271,  Zahira Habibulla H. Sheikh v. State of Gujarat: (2004) 4 SCC 158, Mina Lalita Baruwa v. State of Orissa and Others: (2013) 16 SCC 173 and Rajaram Prasad Yadav v. State of Bihar and Ors: 2013 (14) SCC 461 and Natasha Singh v. CBI (State) : 2013 (5) SCC 741.

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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.”  

10. The indisputable fact situation of the case remains that the daughter of

the appellant died an unnatural death on 14.01.2010 in Nigeria, where she

was living with her husband (the respondent No. 2), who is standing the trial

for offences under Sections 302, 304-B and 498-A IPC. The first post-mortem

of the dead-body of the daughter of appellant was carried out on 16.01.2010 in

Aminu Kanu Teaching Hospital, Nigeria by the said Dr. I. Yusuf. A copy of the

post-mortem report prepared by the said doctor in Nigeria has, of course, been

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placed  on  record  wherein, the  cause  of  death  is  stated  as  “asphyxia

secondary  to  strangulation”.  Though  the  dead-body  of  the  daughter  of

appellant  was  brought  to  India  on  29.01.2010  and  Medical  Board  was

constituted for conducting the post-mortem but then, the Board found that no

definite opinion could be given regarding the time and cause of death. The

investigating agency, for the reasons best known to it,  did not cite the said

doctor, who conducted the first post-mortem in Nigeria as a witness. It is also

not the case on behalf of the accused that the copy of the post-mortem report

dated 16.01.2010 prepared in Nigeria was not disputed and/or he would not be

seeking to cross-examine the said doctor, if he is examined as a witness in this

matter.   In  the given set  of  facts  and circumstances,  evident  it  is  that  the

testimony of the said doctor who conducted the first post-mortem in Nigeria is

germane to the questions involved in this matter; and for a just decision of the

case with adequate opportunity to both the parties to put forward their case,

the application under Section 311 CrPC ought to have been allowed.   

11. The  peculiar  facts  and  circumstances  of  the  case  have  either  been

ignored or have been cursorily dealt by the Trial Court with the observations

that the effect of non-availability of the original post-mortem report would be

considered at the time of the final disposal of the matter. In fact, the principal

reason weighing with the Trial Court in declining the prayer for examination of

the said witness had been that the case was pending since the year 2010.

The High Court, on the other hand, chose not to exercise its powers under

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Section 482 CrPC, with the only observation that the discretion so exercised

by the Trial Court was not to be interfered with.  

12. Though it is expected that the trial of a sessions case should proceed

with reasonable expedition and pendency of such a matter for about 8-9 years

is not desirable but then, the length/duration of a case cannot displace the

basic requirement of ensuring the just decision after taking all the necessary

and material evidence on record. In other words, the age of a case, by itself,

cannot be decisive of the matter when a prayer is made for examination of a

material witness.

13.  In the given set of facts and circumstances, where the witness Dr. I.

Yusuf  is residing in Nigeria, for the purpose of recording of his statement, the

Trial  Court  could  have unquestionably  taken recourse  to  the  provisions  of

Sections  284  and  285  CrPC so  as  to  avoid  the  delay  in  the  matter  and

inconvenience to the parties and the witness. Sections 284 and 285 CrPC

read as under:-

Section 284. When attendance of witness may be dispensed

with and commission issued. -

(1) Whenever, in the course of any inquiry, trial or other proceeding under this Code, it  appears to a Court  of  Magistrate that the examination of a witness is necessary for the ends of justice, and that  the attendance of  such witness cannot  be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the Court or Magistrate may dispense with such attendance and may issue a commission for the examination of the witness in accordance with the provisions of this Chapter; Provided that  where  the  examination  of  the  President  or  the Vice-President  of  India  or  the  Governor  of  a  State  or  the

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Administrator of a Union territory as a witness is necessary for the  ends  of  justice,  a  commission  shall  be  issued  for  the examination of such a witness.

(2) The Court may, when issuing a commission for the examination of a witness for the prosecution direct that such amount as the Court  considers  reasonable  to  meet  the  expenses  of  the accused,  including  the  pleader's  fees,  be  paid  by  the prosecution.

Section 285. Commission to whom to be issued.-

(1) If  the  witness  is  within  the  territories  to  which  this  Code extends,  the  commission  shall  be  directed  to  the  Chief Metropolitan  Magistrate  or  Chief  Judicial  Magistrate,  as  the case may be, within whose local jurisdiction the witness is to be found.

(2) If the witness is in India, but in a State or an area to which this Code  does  not  extend,  the  commission  shall  be  directed  to such  Court  or  officer  as  the  Central  Government  may,  by notification specify in this behalf.

(3)  If  the  witness  is  in  a  country  or  place  outside  India  and arrangements have been made by the Central Government with the  Government  of  such  country  or  place  for  taking  the evidence  of  witnesses  in  relation  to  criminal  matters,  the commission shall be issued in such form, directed to such Court or  officer,  and sent to such authority  for transmission as the Central Government may, by notification prescribe in this behalf

13.1. On the question of inconvenience likely to be caused in the event of

summoning of the said witness from Nigeria, noticeable it is that the appellant

made a prayer that the doctor concerned being not available in the country,

the order may be passed for taking his evidence by issuing commission under

Sections 284 and 285 CrPC. The appellant stated in the application, inter alia,

as under:-

"That however witness is residing in foreign and post-mortem was conducted also there, hence witness should be summoned through High Commission of Nigeria or order may be passed of taking evidence record on commission after issuing commission U/s 284, 285 in CrPC through video conferencing in case of not coming from foreign."

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13.2 The aforesaid  relevant  submissions of  the appellant  have also been

ignored by  the Trial  Court  as  also by  the  High Court.  For  the purpose of

dealing with such a prayer of the appellant the Trial Court could have, rather

ought to have, taken guidance from the decisions of this Court including that in

State of Maharashtra v. Dr. Praful B. Desai : (2003) 4 SCC 601 where this

Court approved of the process of recording the evidence of a witness in the

criminal  trial  through  video-conferencing  when  the  witness  was  found

residing/situate  in  the  United  States  of  America  but  whose  evidence  was

essential for the case set up by the prosecution. This Court observed,  inter

alia, as under:-

"20.  Recording  the  evidence  by  video-conferencing  also satisfies the object of providing, in Section 273, that evidence be recorded in the presence of the Accused. The Accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. In fact the Accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded Court room. They can observe his or her demeanour.  In fact  the facility  to play back would enable better observation of  demeanour.  They can hear and rehear the deposition of  the witness.  The Accused would be able  to  instruct  his  pleader  immediately  and  thus  cross- examination  of  the  witness  is  as  effective  if  not  better.  The facility  of  play  back  would  give  an  added  advantage  whilst cross-examining the witness.  The witness can be confronted with  documents  or  other  material  or  statement  in  the  same manner as if he/she was in Court. All these objects would be fully  met  when  evidence  is  recorded  by  video-conferencing. Thus  no  prejudice,  of  whatsoever  nature,  is  caused  to  the Accused. Of course, as set out hereinafter, evidence by video- conferencing has to be on some conditions."

Thereafter,  with  reference  to  Sections  284  and  285  CrPC,  this  Court

further observed that,-

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"22. ….. Thus in cases where the witness is necessary for the ends of justice and the attendance of such witness cannot be procured  without  an  amount  of  delay,  expense  or inconvenience  which,  under  the  circumstances  of  the  case would  be  unreasonable,  the  Court  may  dispense  with  such attendance  and  issue  a  commission  for  examination  of  the witness. …… Normally a commission would involve recording evidence  at  the  place  where  the  witness  is.  However advancement  in  science  and  technology  has  now  made  it possible to record such evidence by way of video-conferencing in the town/city  where the Court  is.  Thus in case where the attendance of a witness cannot be procured without an amount of delay, expense or inconvenience the Court  could consider issuing a commission to record the evidence by way of video- conferencing."

13.3. In  the present case too, where the witness Dr.  I.Yusuf is residing in

Nigeria, in order to avoid inconvenience to the witness as also to the parties,

issuing of commission and recording his evidence through video-conferencing

appears to be a viable alternative; and the Trial  Court need to take all  the

requisite steps so as to ensure that his evidence comes on record with least

inconvenience and/or burden to the parties and the witness.   

14. In the given set of facts and circumstances, we are clearly of the view

that the Trial Court disposed of the application under Section 311 CrPC on

entirely irrelevant considerations and the High Court also failed to exercise its

jurisdiction  under  Section  482  CrPC  while  overlooking  and  ignoring  the

material and relevant aspects of the case. In our view, the said application

under Section 311 CrPC deserves to be allowed.

15. It  goes without saying that we have not made any comments on the

merits of the case; and the Trial Court would be expected to deal with the

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matter in accordance with law after assessment of the evidence brought on

record.

16. Accordingly, this appeal is allowed in the manner and to the extent that

the impugned orders dated 31.05.2018 and 02.08.2018 are set aside and the

application moved in this matter under Section 311 CrPC is allowed. The Trial

Court shall now take all the necessary measures for ensuring the examination

of  the  witness  concerned  by  issuing  commission  and/or  recording  his

statement  through  video-conferencing  and  shall  also  ensure  expeditious

proceedings so as to conclude the matter at the earliest.

………………………..………J. (ABHAY MANOHAR SAPRE)1

………………………………..J. (DINESH MAHESHWARI) 1   1

New Delhi,  Date: 16th April, 2019      

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