REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.    15   OF 2019

(Arising out of S.L.P. (Crl.) No.7748 of 2017)

SWAPAN KUMAR CHATTERJEE  … APPELLANT  

VERSUS

CENTRAL BUREAU OF INVESTIGATION         … RESPONDENT

J U D G M E N T

S.ABDUL NAZEER, J.

1. Leave granted.

2. The appellant- Swapan Kumar Chatterjee has challenged the

order dated 04.05.2017 in CRR No. 440/2015 passed by the High

Court  at  Calcutta,  whereby  the  High  Court  confirmed the  order

dated  05.12.2014  passed  by  the  Trial  Court  permitting  the

examination of one witness Mr. H.S. Tuteja.

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

1

4. A complaint was lodged by one Mr. P.N. Khanna before the

Superintendant of Police, Central Bureau of Investigation (for short

'CBI'), Economic Offences Wing, Church Lane Calcutta, where the

present 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  the  Indian Penal  Code,  1860.  After

completion  of  the  investigation,  investigating  agency  filed

chargesheet under the aforesaid sections and also under Section

5(1)(c)(d) read with Section 5(2) of the Prevention of Corruption Act,

1947 against the appellant and three others. The case was put on

trial.  Twenty  nine  prosecution  witnesses  were  examined.   The

Public  Prosecutor  filed  a  petition  praying  for  examination  of

handwriting expert Mr. H.S. Tuteja, which was allowed and a date

was  fixed  on  24.03.2004  and  then  to  26.03.2004  for  his

examination.  Prosecution was directed to issue summons to the

witnesses well in advance of the date of evidence.  However, Mr.

H.S.  Tuteja  failed  to  appear  before  the  Court  due  to  which

Prosecutor further sought time for fixing of a schedule till next day

for his examination.  This request of the Prosecutor was accepted by

the Magistrate with a direction that the schedule is fixed on and

2

from 10.05.2004 to 12.05.2004, and prosecution was directed to

summon all  the  witnesses  including  Mr.  H.S.  Tuteja.   The  said

witness yet again failed to turn up.  The Prosecutor did not pray for

re-issuing  of  summons  and  bailable  warrant,  but  a  separate

petition was filed by the Prosecutor for re-summoning the witnesses

including  Mr.  H.S.  Tuteja.   Such  prayer  was  considered  by  the

Magistrate as a last chance.  From then onwards, whenever a date

is fixed for examining Mr. H.S. Tuteja, he would fail to turn up and

the  prosecution would invariably  come up with  a  petition either

praying for time or for adjournment of the matter.

5. Interestingly, this practice has been going on unopposed for a

period of thirteen years starting from the year 2004.  It is necessary

to notice here that the High Court of Calcutta in CRR No. 3436 of

2006 disposed of on 28.07.2011 gave a last opportunity to the CBI

to procure attendance of Mr. H.S. Tuteja.  It was observed that in

case of failure on the part of the CBI to procure his attendance, and

the attendance of other witnesses and get them examined, the Trial

Court  will  proceed  further  with  the  trial  without  granting  any

further adjournment to the CBI keeping in mind that the case is

still pending from the year 1985.   

3

6. However, the Trial Court still allowed the prosecution time to

present their witness Mr. H.S. Tuteja on 03.02.2012, who by now

was nothing short of a creature of fiction and whose presence has

been warranted yet unattained for over a decade.  Despite summon

was duly served upon, he was not present on that date also.  Again,

the matter  was adjourned to 24.02.2012 for  his evidence.   Even

thereafter  on  several  dates,  the  CBI  failed  to  produce  the  said

witness.   

7. Again,  the  High  Court  of  Calcutta  in  Criminal  Revision

Application No.2696 of 2014 dated 15.09.2014 observed that since

the trial is pending in the Trial Court for a long time, all steps must

be taken by the Trial Court to conclude the trial as expeditiously as

possible, preferably within coming six months.

8. On 25.11.2014, the appellant was examined as DW-1.  On the

same day the prosecution again filed an application to examine Mr.

H.S.  Tuteja.   This  application was allowed by the  Magistrate  on

05.12.2014 and said order has been confirmed by the High Court.

9. We  have  heard  learned  senior  counsel  and  learned  ASG

appearing for the parties.   

4

10. Section 311 of the Code of Criminal Procedure, 1973 (for short

'the Code') provides for the power of the court to summon material

witness or examination person present.  It reads as follows:

"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."

11. The first part of this Section which is permissive gives purely

discretionary authority to the criminal court and enables it at any

stage of inquiry, trial or other proceedings under the Code to act in

one  of  the  three  ways,  namely,  (i)  to  summon  any  person  as  a

witness;  or  (ii)  to  examine any person in attendance,  though not

summoned as a witness; or (iii) to recall and re-examine any person

already examined.  The second part, which is mandatory, imposes

an obligation on the court (i) to summon and examine or (ii) to recall

and  re-examine  any  such  person  if  his  evidence  appears  to  be

essential to the just decision of the case.   

5

12. It is well settled that the power conferred under Section 311

should be invoked by the court only to meet the ends of justice.  The

power is to be exercised only for strong and valid reasons and it

should be exercised with great caution and circumspection.   The

court has vide power under this Section to even recall witnesses for

reexamination or further examination,  necessary in the interest of

justice,  but  the  same  has  to  be  exercised  after  taking  into

consideration the facts and circumstances of each case.  The power

under this provision shall not be exercised if the court is of the view

that the application has been filed as an abuse of the process of law.

13. Where the prosecution evidence has been closed long back and

the  reasons  for  non-examination  of  the  witness  earlier  is  not

satisfactory, the summoning of the witness at belated stage would

cause great  prejudice to the accused and should not  be allowed.

Similarly,  the court  should not  encourage the filing of  successive

applications for recall of a 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

application  of  the  prosecution  to  examine  Mr.  H.S.  Tuteja  was

allowed in the year 2004.   However, prosecution has failed to keep

6

him in court for his examination.   Thereafter, multiple applications

have been filed to summon him and all of them have been allowed.

However, the prosecution has failed to procure his attendance in

the court.   

15. As  mentioned  earlier,  on  28.07.2011  the  High  Court  of

Calcutta  gave  the  prosecution  a  last  opportunity  to  procure  his

attendance and declared that in case of failure on the part of the

CBI to procure the attendance of witnesses and get them examined,

the Trial Court will proceed further with the trial without granting

any  further  adjournment  to  the  CBI.  Even  thereafter,  the

applications filed by the CBI have been allowed.

16. On  15.09.2014,  yet  again,  the  High  Court  in  a  criminal

revision application observed that since the trial is pending for a

long time, steps must be taken by the trial court to conclude the

trial  as  expeditiously  as  possible,  preferably  within  six  months.

Even thereafter, the trial court has allowed the application filed by

the prosecution for summoning Mr. H.S. Tuteja, which order has

been confirmed by the High Court.  In our view, the High Court

ought to have accepted the appeal and rejected the application of

the prosecution for summoning the witness, Mr. H.S. Tuteja.

7

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 Trial Court dated 05.12.2014 are hereby quashed and the

application filed by the Prosecutor for summoning Mr. H.S. Tuteja

is hereby dismissed.     

…………………………………J.     (A.K. SIKRI)  

…………………………………J.     (S. ABDUL NAZEER)

New Delhi; January 04, 2019.  

8