Malkiat Singh vs State of Punjab and Others

Daya Chaudhary, J.—The present petition has been filed for quashing of order dated 27.11.2009 (Annexure P-19) passed by Addl. Sessions Judge, Sangrur vide which an application filed by the petitioner u/s 311 Cr.P.C. for summoning of witnesses has been dismissed and for issuance of further directions to the respondents to obtain opinion on the handwriting of respondents No. 5 and 8 from some Central Forensic Science Laboratory.

The brief facts of the prosecution story are that the dead body of Harkewal Singh, son of the petitioner, was found lying on the railway track. Initially members of the family of deceased did not express any suspicion on any one. Later on, petitioner Malkiat Singh made a complaint that his son was murdered by accused Amrik Singh and others and dead-body was thrown on the railway track with a view to give impression that the deceased had committed suicide. Accordingly, FIR No. 132 dated 18.5.2004 under Sections 302//120-B IPC was registered at Police Station, Dhuri. After investigation of the case, challan against accused Amrik Singh, Darshan Singh, Sohan Singh, Zora Singh and Mohinder Pal Singh was presented. Thereafter, a supplementary challan against accused Dhanwant Singh was also presented. All the accused were charge-sheeted. Zora Singh accused had recorded his confessional statement before the Illaqa Magistrate. Later on, an application was moved before the Judicial Magistrate for grant of pardon as he wanted to become an approver. His statement was recorded but prayer for grant of pardon was declined.

Petitioner Malkiat Singh was examined as PW-6 and his examination-in-chief was recorded on 6th December, 2007 and he was cross-examined on 12.12.2007. While he was cross-examined on 12.12.2007 by the counsel representing Zora Singh, he disclosed that accused Sohan Singh and Darshan Singh came to the Office of Deputy Commissioner and sworn their affidavits and original affidavits were in their possession. They wanted to produce original affidavits on the file but an objection was raised by the counsel for Sohan Singh and Darshan Singh that these affidavits cannot be used either by the prosecution or the defence. They also moved an application u/s 340 Cr.P.C. for initiating proceedings against the complainant for producing the forged affidavits as they never sworn these affidavits. The matter with regard to consideration of these affidavits was before the learned Sessions Judge but none of the parties pressed for objection regarding production of the affidavits. Later on, an application u/s 311 Cr.P.C. was moved on 18.9.2008 for grant of permission to examine Parveen Kumar Garg (Notary Public) and Chamkaur Singh for getting proved the aforesaid affidavits from them. The application was allowed and permission was granted to the prosecution to examine Parveen Kumar Garg, Notary Public and Chamkaur Singh. The order dated 10.1.2009 was challenged before this Court in Crl. Revision No. 262 of 2009 which was allowed on 1.4.2009. However, it was left to the parties to move an appropriate application before the trial Court. However, the application was dismissed by the trial Court by stating that depositions of Parveen Kumar Garg and Chamkaur Singh could not be read into evidence in view of the orders passed by the High Court on 1.4.2009. Later on, the Public Prosecutor also moved an application u/s 173(8) Cr.P.C. for investigation regarding execution of affidavits by Sohan Singh and Darshan Singh which was allowed by the trial Court on 8.5.2009 and handwriting samples of both Sohan Singh and Darshan Singh were taken for comparison with the signatures appearing on the affidavits and the same were sent to the Forensic Science Laboratory Punjab and following opinion was given:

The red enclosed questioned writings stamped and marked Q6 to Q9 when compared with the red enclosed standard writing similarly stamped and marked S21 to S47 show differences but it to evaluate these differences properly and for a definite opinion more suitable and sufficient specimen/admitted signatures of the person concerned in Gurumukhi already existing on some documents and near about the period of questioned signatures marked Q6 to Q9 are required.

On the basis of opinion of FSL, a report u/s 173(8) Cr.P.C. was sent by SP, Sangrur to the Court on 8.6.2009 which contained the statements of Sohan Singh, Darshan Singh, Chamkaur Singh and Parveen Kumar Garg respectively recorded during investigation. The application was moved by the petitioner on 24.6.2009 stating that accused -respondent No. 4 Dhanwant Singh had got him illegally detained in custody by CIA Staff Sangrur from where he was released by the Warrant Officer. The signatures of Sohan Singh and Darshan Singh were again ordered to be taken and the same were sent to Forensic Science Laboratory, Punjab, Chandigarh and following opinion was given as under:

The red enclosed questioned signatures stamped and marked Q6 to Q9 when compared with the red enclosed standard signatures similarly stamped and marked S21 to S47 and S48 to S73 show differences but it has not been possible to express any definite opinion in absence of admitted signatures.

The trial Court on the basis of aforesaid report, passed the following order on 25.7.2009:

Ld. Addl. P.P. has placed on file report of the police regarding further investigation with regard to the affidavits in question. As per the report of the police, there is no proof regarding genuineness of the affidavits. As such, investigating agency does not want to rely upon the affidavits in question for proving the case. Now remaining prosecution witnesses be summoned for 19.8.2009.

The order passed by the trial Court on 25.7.2009 was challenged by way of filing Crl.Misc No. 23048 of 2009 and the petition was dismissed as withdrawn on 8.10.2009 with liberty to approach the trial Court. The petitioner thereafter moved an application dated 11.11.2009 before the trial Court which was dismissed vide order dated 27.11.2009 which is under challenge in this petition.

Mr. J.S.Bedi, learned Counsel for the petitioner, contends that two affidavits were executed by accused-respondents No. 5 and 8 confessing their guilt and the same could have been proved either by recording statements of persons who saw the execution of these documents i.e. Parveen Kumar Garg and Chamkaur Singh Sarpanch or by obtaining opinion of the handwriting expert to ascertain whether these affidavits were actually signed by the accused. Mr. Bedi further submits that the opinion given by FSL does not negate the case of the petitioner as it is for the trial Court to see whether the affidavits were genuine or not and that can be only on the basis of appreciation of evidence only.

Mr. J.S.Bedi further submits that the impugned order has been passed by the trial Court without proper interpretation of Section 311 Cr.P.C. as two affidavits submitted by accused- respondents No. 5 and 8 were allowed by the trial Court and the statements of Parveen Kumar Garg and Chamkaur Singh should have been recorded and the genuineness of the affidavits can be judged only on the basis of evidence. It has further been argued by Mr.Bedi that the affidavits contained confessional statements of both the accused which are relevant for just and proper decision of the case and the material evidence withheld by the prosecution can be brought by invoking powers u/s 311 Cr.P.C. Reliance has been placed on the judgments of the Supreme Court reported in The State of Gujarat v. Vinaya Chandra Chhota Lal Pathi AIR 1967 SC 778, Ishwari Prasad Mishra Vs. Mohammad Isa, , The State (Delhi Administration) Vs. Pali Ram, , S. Gopal Reddy Vs. State of Andhra Pradesh, , Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors. 2004 SCC (Cri) 999, Godrej Pacific Tech Ltd. v. Computer Joint India Ltd. 2008 (3) R.C.R. (Cri.) 897 and Hanuman Ram v. The State of Rajasthan 2008 (4) R.C. R (Criminal) 823.

The contention of the learned Counsel for the petitioner that respondents No. 3 and 4 had managed the office of respondent No. 2 at the behest of the accused and an inconclusive opinion was given by respondent No. 2. Respondents No. 3 and 4 from the very beginning were using their pressure financially and politically and the petitioner is agitating for his case since 2003 in respect of murder of his son. However, at the first instance no FIR was registered and even in the petition to challenge order dated 10.1.2009 by way of Revision petition No. 262 of 2009 in the High Court, the petitioner was not made a party. The revision was allowed and order dated 10.1.2009 was set aside and it was left to the discretion of the prosecution or to the complainant to file an appropriate application.

Mr.Bedi lastly argues that the Court has vast powers u/s 311 Cr.P.C. to call any witness for just decision of the case and it will not take much time whereas the trial Court has dismissed the application on the ground that the matter has already been delayed for two years.

Learned Counsel for the accused submits that the investigation has been conducted properly and the present application was filed just to delay the trial. These affidavits were not filed at the proper time as these affidavits were with him since January 2007 but the same were produced on record in December 2007, when the cross-examination of the complainant was being conducted by counsel for accused Zora Singh who was conniving with the complainant. Learned Counsel for the accused further submits that right of speedy trial of the accused is being violated by the complainant as on various occasions, the trial has been delayed on one pretext or the other.

I have heard the arguments of learned Counsel for the parties and have also gone through the impugned order and other documents available on record.

In the present case, FIR No. 132 dated 18.5.2004 under Sections 302/120-B IPC was registered at P.S. Sadar Dhuri regarding murder of Harkewal Singh which was thoroughly investigated. After completion of investigation, challan was presented in the Court on 27.8.2004, charges were framed against the accused and case was proceeded for prosecution evidence. During pendency of trial, the present petitioner produced two affidavits allegedly executed by accused Sohan Singh and Darshan Singh before the trial Court on 12.12.2007 which were attested by Notary Public, Parveen Kumar Garg and identified by Chamkaur Singh, Sarpanch and after taking permission vide order dated 10.1.2009 u/s 311 Cr.P.C., both Parveen Kumar Garg and Chamkaur Singh were examined as prosecution witnesses on 5.3.2009. The order dated 10.1.2009 was challegned by the petitioner by way of Crl.Revision No. 262 of 2009 before this Court which was set aside. Thereafter an application was moved by the prosecution u/s 173(8) Cr.P.C. for further investigation with regard to execution of these affidavits which was allowed by the trial Court vide order dated 8.5.2009 and the handwriting samples of both Sohan Singh and Darshan Singh were taken and sent to Forensic Science Laboratory for comparison to verify the veracity. The petitioner filed Crl.Misc No. 23048 of 2009 for direction to the State for obtaining opinion of the Central Forensic Science Laboratory or any Laboratory regarding signatures of accused Sohan Singh and Darshan Singh on the said affidavits but the same was dismissed as withdrawn with liberty to approach the trial Court for redressal of his grievance. Thereafter, the petitioner moved an application dated 11.11.2009 before the trial Court for recording statements of Parveen Kumar Garg, Notary Public and Chamkaur Singh for just decision of the case and the same was dismissed on 27.11.2009.

The trial Court on an application moved by the prosecution vide order dated 25.7.2009 for further investigation with regard to genuineness of the affidavits in question observed that there was no proof regarding genuineness of the affidavits and the Investigating Agency did not want to rely upon the affidavits in question to prove the case. The said order dated 25.7.2009 was never challenged by the complainant. Subsequently, the petitioner filed Crl. Misc. No. M-23048 of 2009 which was dismissed as not pressed with liberty to the petitioner to approach the trial Court. The said petition was for the same relief and is subject-matter of challenge in the present petition. The petitioner has also not placed any material to show how report of the Forensic Science Laboratory Punjab is not correct. Simply to doubt the veracity of the report does not give the petitioner any right to challenge the same. These affidavits were already in possession of the petitioner but he did not bother to get these affidavits examined from some other document expert to show that the report of FSL, Punjab was not genuine. These affidavits were brought before the trial Court at the time of cross-examination of the complainant and till his examination-in-Chief, there was no mention of any affidavit. Moreover, the petitioner has also failed to explain the delay before the trial Court as well as before this Court as to why the delay occurred in submission of these affidavits and why there was no mention of these affidavits earlier. The petitioner was having ample opportunity to mention in his examination-in-chief or immediately on getting these affidavits in January 2007. The petitioner has also not come forward to explain how and from where these affidavits came to him.

There is no dispute regarding the powers of the Court u/s 311 Cr.P.C. as the Court can exercise power u/s 311 Cr.P.C. to summon any witness at any time if necessary for just decision of the case but it is for the Court to see whether it is a case where summoning of witness is necessary for just decision of the case. Such power is not to be exercised in a routine manner. Moreover, no case has been made out by the petitioner either before the trial Court or before this Court how these affidavits were necessary for just decision of the case when the trial is at the verge of conclusion as evidence of the prosecution was closed on 14.12.2009 and the matter was fixed for recording statements of the accused u/s 313 Cr.P.C. The object and purpose of Section 311 Cr.P.C. is to avoid failure of justice on account of mistake or failure on the part of either party to the proceedings to bring any necessary and valuable evidence on record essential for just decision of the case. Although wide discretion has been given to the Court to summon, examine or to recall and re-examine any such person if his evidence appears to the Court to be essential for just decision of the case. This power is not to be exercised by the Court to help the prosecution or to help the accused or not to fill up any gap in the prosecution evidence or to give any unfair advantage against the accused. This Court, while considering the ambit and scope of Section 311 Cr.P.C. in the case of Jagdish and Anr. v. State of Haryana (Crl. Revision No. 2547 of 2009) decided on 25.9.2009, has held as follows:

The Section when read as reproduced above, clearly shows that this provision gives ample powers to the Court to recall, summon, or re-examine any person in evidence, if it appears to be essential to the just decision of the case. The powers of the Court are wide enough to exercise its discretion depending upon the facts and circumstances of each case and it is to the satisfaction of the Court and to see that cause of justice should not suffer. The primary aim and object of this Section is to do justice between the parties. If the Court comes to a conclusion that the production of such evidence, which has been sought to be produced taking recourse of Section 311 Cr.P.C., would enable the Court to come to a correct finding, it would be just and reasonable and the Court would be fully justified in permitting the evidence to be produced under this Section. This Section does not distinguish and rather allows production of evidence whether documentary or oral, which the Court feels is necessary for the just decision of the case and no fetters and impediments can be put in exercise of these powers, which has been conferred by the Legislature on the trial Court. The Court cannot dilute the statutory powers conferred upon the trial Court, when the Legislature did not intend to do so. Justice should not be the sufferer. The purpose and intent of the trial is to find out the truth and the truth alone should prevail and in its quest to find out and to reach the truth, the trial Court has been saddled with powers to make all efforts to reach a correct conclusion, which is the truth. No doubt, in the said process, the interest of the parties has to be taken care of, but that does not mean that justice should be the casualty. The rights have been conferred under the statute both on the prosecution as well as the accused and when the statute confers certain powers upon the Court, which is primarily in the nature of doing justice and for that it is the satisfaction of the Court as to the essentiality of the evidence, sought to be produced by the parties for the just decision of the case, the same is depending upon the facts of each case.

Thereafter, this Court in the case of Dr. Gurpreet Kaur v. Appropriate Authority-cum-Senior Medical Officer, Incharge Sub-Division Hospital, Tehsil Phillaur (Jalandhar) being Crl. Misc. No. M-17027 of 2009 decided on 4.12.2009, has held as follows:

A perusal of the above provision shows that it is a discretion provided to the Court, where any inquiry, trial, or other proceedings under the Code is pending, the Court has been given wide powers to recall or re-examine any person already examined, if his evidence appears to the Court to be essential for the just decision of the case. The satisfaction is, therefore, of the Court, which has to decide the matter pending before it. The touch-stone for exercise of powers u/s 311 Cr.P.C. is the satisfaction of the Court that the evidence of any person, which comes to its notice, is essential for the just decision of the case. It can at that stage summon any person as witness, examine any person in attendance, though not summoned as a witness or recall or re-examine any person already examined. This power, u/s 311 Cr.P.C. can be exercised by the Court at any stage of any inquiry, trial, or other proceedings under the Code of Criminal Procedure. The intention of the Legislature is to empower and enable the Court to come to a correct finding and for that reason, the Court would be fully justified in permitting production of evidence whether documentary or oral, where the Court feels that the same is necessary for the just decision of the case and no fetters can be put in exercise of these powers in the Court. The cause of justice is paramount and no impediment has, therefore, been intentionally put on the Court by the Legislature to exercise the powers u/s 311 Cr.P.C.

Keeping in view the above said facts and legal position, there is no merit in the contentions raised by the learned Counsel for the petitioner and the petition being devoid of any merit, is hereby dismissed.