Sri Jogen Borah vs State of Assam

This criminal revision petition is filed under Sections 397/401 of the Cr.PC, challenging the legality, propriety and correctness of the order,

dated 12.10.2011, passed by the learned Special Judge, Assam in Special Case No. 29(A)/2001 and the subsequent orders, dated 25.10.2011,

18.11.2011, 01.12.2011, 15.12.2011, 27.12.2011, 03.01.2012 and 09.01.2012, passed in the aforesaid case.

The fact leading to the case is that, an FIR was lodged by Inspector of Police, Vigilance Police Station, on 24.03.1999 to the effect that after

conducting an enquiry it was found that some members of the office of the Deputy Inspector of Schools, Dhemaji Sub-Division fraudulently

prepared a list of teachers for payment of salaries and by submitting forged documents in the High Court had obtained an order for release of

salary for such persons and after receipt of the said complaint, Vigilance Police Station Case No. 2/1999 under Sections

120(B)/420/468/471/408/409 of the IPC read with Section 13(2) of the Prevention of corruption Act was registered and after completion of the

investigation, charge-sheet was laid on 10.08.2000 vide Charge-Sheet No. 1/2000 against seven accused persons including the present petitioner.

Charge was framed against the accused persons including the accused petitioner under Sections 120(B)/420/468/471/408/409 of the IPC read

with Section 13(2) and 13(1)(c) of the Prevention of corruption Act.

31 (thirty one) prosecution witnesses were examined.

The learned Special Public Prosecutor advanced his argument and thereafter at his instance, the case was posted for further argument.

At the stage of arguments, the learned Special Public Prosecutor filed an application on 01.08.2011 stating that the signature of the author of

exhibit-60 was not exhibited, and therefore, the then Deputy Inspector of Schools, Dhemaji be summoned with additional prayer to call for the

records of Civil Rule No. 2223/1995 from the Hon''ble High Court and to recall PW1 for reexamination. The learned trial court of Special Judge,

Assam, after hearing both sides, passed an order on 24.08.2011 to the extent of calling the then Deputy Inspector of Schools, Dhemaji and the

original records of Civil Rule No. 2223/1995 from this Court and rejecting the prayer to recall of PW1 for re examination.

Against this order, dated 24.08.2011, the present petitioner filed a criminal revision petition before this Court, vide Criminal Revision Petition

No. 326/2011. This Court vide order, dated 15.09.2011 passed in the said revision petition, set aside the order, dated 24.08.2011, passed by the

learned Special Judge, Assam in the aforesaid Special Case No. 29(A)/2011 with a direction, however, that the learned trial court will be at liberty

to call any other witnesses already examined subject to the requirement for the interest as well as for ends of justice.

On perusal of the order, dated 24.08.2011, passed by the learned Special Judge, Assam, referred to above and marked as Annexure-1 in this

petition, makes it appear that summon was ordered to be issued to the Deputy Inspector of Schools, Dhemaji, Sri D Gogoi as well as to call for

the original records of Civil Rule No. 2223/1995 from this Court.

Vide the order, dated 15.09.2011, passed in Criminal Revision Petition No. 326/2011, this Court passed the following order:-

The instant petition under Section 397/401 Cr. P.C. is filed by the petitioner, Jogen Borah, challenging the order dated 24.8.2011 passed by

the learned Special Judge, Assam in Special Case No. 29(A) of 2001 whereby and whereunder the learned Special Judge allowed the prayer of

the prosecution for examining the Deputy Inspector of School, Dhemaji as an author of Ext- 60 and also for calling for the original records of Civil

Rule 2223 of 1995 (Smti Dipika Devi & others Vs. State of Assam).

Heard Mr. B.K. Mahajan, learned Counsel for the petitioner as well as Mr. K. Munir, learned Addl. P.P for the State respondent.

As agreed to by the learned Counsel for the parties and in terms of the order dated 7.9.2011 and 14.9.2011 passed by this Court in this case,

the matter is taken up for final disposal.

The brief facts of the case needed to be discussed are as follows:

One Sri Jagadish Sarma, Inspector of Police, Vigilance Police Station, Assam lodged an FIR on 24.3.1999 alleging, inter alia, that after conducting

enquiry it was found that some employees of the office of the Deputy Inspector of School, Dhemaji Sub-Division fraudulently prepared a list of

teachers for payment of salaries and by submitting such a forged document in the High Court obtained an order for release of salary of those

persons.

After receipt of the said complaint, the Vigilance Police station case No. 2 of 1999 was registered under Sections

120(B)/420/468/471/408/409 IPC read with Section 13(2) of the Prevention of Corruption Act, 1988.

The police filed the charge sheet after completion of the investigation against the present accused person along with others. On the basis of the

said charge sheet, trial started in the year 2001 before the Special Judge, Assam and the learned Special Judge ultimately recorded the evidence of

both the parties in the aforesaid special case.

Thereafter, the prosecution was advancing its argument and defence also arguing its case. On 1.8.2011, the special P.P submitted an application

for examination of the Deputy Inspector of School, Dhemaji as prosecution witness to prove the Ext. 60 and also to call for the records of Civil

Rule 2223 of 1995 from this Court, as there is a doubt about the genuineness of the Ext. 37 and also to re-examine the P.W.1.

Learned Special Judge, upon hearing the parties passed the impugned order whereby rejected the prayer for reexamination of P.W 1 and

allowed the prayer for examination of Deputy Inspector of School, Dhemaji and also calling for records of Civil Rule 2223 of 1995. Being

aggrieved by the said order, the petitioner has preferred the instant revision petition.

Before dealing with the submission of the learned Counsel for the parties, it would be proper to reproduce the application filed by the learned

special P.P. Accordingly, the same is reproduced hereunder:

IN THE COURT OF SPECIAL JUDGE, ASSAM GUWAHATI

Special case No. 29(A) 01

State -vs- Jogen Bora and others

On behalf of prosecution it is

Most respectfully sheweth:-

That the list of teachers marked as Exhibit 60 in this case and same is proved by I.O. But the author of the document of Exhibit 60

was not examined and hence necessity has arisen to examine him i.e. Deputy Inspector of Schools, Dhemaji (on 19.2.1998).

That the High Court order Exhibit 37 appears to be written by black and red inks which create doubt about the genuineness and

as such the said CR 2223/95 may kindly be called for.

That PW-1 needs re-examination.

It is therefore prayed that Hon''ble Court would be kind enough pass orders directing Deputy Inspector of Schools, Dhemaji to

prove his signature in Exhibit 60 as well as P.W 1 to be reexamined and the original CR 2223/95 to be called for from Gauhati High

Court and for this act of kindness, the prosecution shall every pray.

Mr. Mahajan, learned Counsel appearing for the petitioner while urging for quashing the impugned order would contend that there is no doubt

that a Court has the power to summon any person as an witness or recall any person already examined as an witness at any stage of enquiry or

trial or other proceedings, under Section 311 Cr. P.C. subject to that the said witness is so essential to decide the issue before him. But the said

provision does not empower a Court to allow the prosecution to fill up the inherent lacuna of the case. According to him, in the instant case, neither

the I.O of the case nor any witness who adduced their evidence mentioned the name of the Deputy Inspector, Dhemaji as an author of Ext. 60 of

the case. Therefore, the said Deputy Inspector of School cannot be called as a witness.

He further submits that the prosecution neither in the police report nor at any stage of trial disclosed before the Court either by way of evidence

or making of an application that petitioner is the person who forged the certified copy i.e the Ext. 37 which is a document relating to Civil Rule

2223 of 1995. More so, the I.O of the case in his cross specifically said that during investigation he could not detect as to who submitted the

certified copy of the order dated 5.6.1995, a document relating to Civil Rule 2223 of 1995 in the office of the Deputy Inspector of School,

Dhemaji and he also not gave requisition for examining the petitioner of the said civil rule and also did not visit the office of the High Court in the

record section, copying section etc. On that count also, the record of Civil Rule 2223 of 1995 is not necessary for the purpose of trial and calling

of such document at this stage will help the prosecution to fill up the inherent lacuna of the prosecution, as a result of which, the petitioner would be

prejudiced in the trial and ultimately, the decision thereof.

In support of his contention, that the inherent lacuna cannot be filled up at a belated stage, he placed reliance on a decision of the Apex Court

in Rajendra Prasad Vs. Narcotic Cell, (1999) 6 SCC 110, particularly, paragraph-8 of the said report wherein the Apex Court while answering

the question ""Can a trial court permit lacuna in prosecution evidence filled up?"" stated, inter alia,

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.

While referring to the aforesaid paragraph of the said report, Mr. Mahajan also contended that non-seizure of the relevant document from the

High Court, the record of Civil Rule 2223 of 1995 by the investigating authority is an inherent lacuna, therefore, the same cannot be allowed to

compare with the Ext. 37 at this belated stage in a criminal trial, more so, that cannot also be treated as an oversight from the side of the I.O of the

case or from the special P.P and such non-seizure of the original record cannot be considered as a mistake which can be rectified in a later stage.

He finally contended that in the name of exercising the power under Section 311 of the Cr. P or under Section 165 of the Evidence Act, the

Court is not empowered to allow the prosecution to fill up the lacuna in a case, what, in fact, the learned special Judge done in this case.

Mr. Munir, learned Addl. P.P while defending the impugned order of the learned Special Judge would contend that the exercise of power

under Section 311 Cr. P.C should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to

a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined

for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as ""filling in a lacuna in

the prosecution case"" unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in

causing serious prejudice to the accused resulting in miscarriage of justice. (See (2006) 7 SCC 529, U.T. of Dadra & Nagar Haveli and anr Vs.

Fatehsinh Mohansinh Chauhan).

It appears from the impugned order that the Court below has considered the provisions of Section 311 Cr. P.C. as well as Section 165 of the

Indian Evidence Act while passing the impugned order and also took note of Ramchandar Vs. State of Hariyana, AIR 1981 SC 1036, wherein it

is observed that every criminal trial is a voyage of discovery in which truth is the quest.

It also appears from the record that during the trial, 31 witness were examined by the prosecution, but the learned Special P.P for the reasons

best known to him did not exhibit the list and undertaking of those 30 teachers MR 9/99 which are tagged with the record and the list of regular

teachers was also not properly exhibited and on perusal of Ext. 37, the trial Court also found that in the certified copy of the order in Civil Rule

2223 of 1995, in the list of 30 teachers petitioners, the name of the teachers from Sl. No. 21 to 30 are of different ink. The learned trial Court also

considered the decisions of Rajendra Prasad (supra), which was also referred to by Mr. Mahajan, as well as the decision in Zahira Habibulla H.

Shekh and anr. Vs. State of Gujarat & ors (2004) 4 SCC 158 wherein the Apex Court considered the provisions of Section 311 as well as the

provisions of Section 378 of the Cr. P.C and noted that

The courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being

stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on presiding

officers of court to elicit all necessary materials by playing an active role in the evidence-collecting process. They have to monitor the

proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the

prosecutor is remiss in some ways, it can control the proceedings effectively so that the ultimate objective i.e. truth is arrived at. This

becomes more necessary where the court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the

requisite manner. The court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or

dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the

defence is a liability to the fair judicial system, and courts could not also play into the hands of such prosecuting agency showing

indifference or adopting an attitude of total aloofness.

Considering the aforesaid observation, the trial Court probably passed the impugned order. There is no doubt that discretion given to the

Court is very wide and such discretion also requires a corresponding caution, when a Court passing order in a case in argument stage, the court is

to see whether at that stage, if any order is passed, that would cause any prejudice to the accused. In the instant case, it appears from the record

that though the P.P asked for examination of Deputy Inspector of School, re-examination of P.W 1 which prayer has been rejected by the trial

Court, and also for recalling of the Ext. 37, he no where stated the reasons for such examination of the Deputy Inspector of School and recalling of

the aforesaid documents. More so, the said document is not the part of the police report and the petitioner being the accused was not provided

with the copy of such record at the initial stage. Therefore, it would obviously prejudice the said petitioner as defence has disclosed its case, more

particularly, adduced the evidence in support of its case.

Taking note of the fact that the I.O of the case when stated in his cross that he could not detect as to who had submitted the certified copy of

the order dated 5.6.1995 in connection with Civil Rule 2223 of 1995 in the office of Deputy Inspector of School, Dhemaji, it would in no way help

the prosecution case even on submission of the said record. When according to the Court below, the said document is a forged one, then the court

should take action in accordance with the law against the person who submitted the said document before the Court, or the Court can inform the

High Court to take action against the person who obtained the certified copy and deposited the same before the trial Court and subsequently

forged the same, as the prosecution failed to state the reasons for examination of the Deputy Inspector of Schools, Dhemaji and none of the

witnesses also disclosed his name as an author of Ext. 60. According to this Court, examination of such a witness i.e. the Deputy Inspector of

Schools, Dhemaji would not only help the prosecution to fill up the lacuna, rather that would help to fill up the inherent lacuna which will prejudice

the petitioner accused, as it is not the case of the prosecution that either due to inadvertence or mistake, it could not examine the person when

other prosecution witnesses were examined. It is also not a case of the prosecution that Ext. 37 was either forged by the present petitioner or

forged by any of the accused facing the trial. In that case, if the Court allows the prosecution for examining the record of Civil Rule 2223 of 1995

that would obviously prejudice the accused person. Therefore, according to this Court, though the learned Special Judge has the power to examine

and re-examine or recalling the witnesses already examined, under Section 311 of the Cr. P.C. at any stage of the enquiry or trial, but this is not a

fit case where at this belated stage an witness can be examined which would ultimately frustrate and prejudice the case made out by the defence.

In view of the above, the impugned order dated 24.8.2011 passed by the learned Special Judge, Assam, in Special Case No. 29(A) of 2001

is set aside. However, the trial Court has the liberty to call any other witness already examined subject to the same is required for the interest as

well as ends of justice.

With the aforesaid order, the criminal revision petition is disposed of.

The orders subsequent to the order, dated 12.10.2011, passed by the learned Special Judge in the aforesaid case is issuing of Non Bailable

Warrant of Arrest against the present accused-petitioner for his non-appearance in the Court. This case was pending at the stage of recording of

statements of the accused-petitioner and others under Section 313 of the Cr.PC and due to their absence, such statement could not be recorded,

as appears from the order, dated 09.01.2012, passed in the aforesaid Special Case by the learned Special Judge, Assam and the petition of the

present accused-petitioner and others showing their cause of absence was rejected by the learned trial court of Special Judge, Assam.

However, the Non Bailable Warrant of Arrest issued against the accused-petitioner was re-called on the basis of the order of this High Court.

Whatever it may be, it appears from the orders subsequent to order, dated 12.10.2011 that the learned trial court of Special Judge, Assam

proceeded with the re-examination after receipt of the records of the Civil Rule No. 2223/1995 in accordance with the order, dated 15.09.2011,

passed in Criminal Revision Petition No. 326/2011.

The order, dated 12.10.2011 impugned in this petition is reproduced below:-

Absence of accused Jogneswar Borpatragohain, Kamala Sarma, Khogen Deori, Mohendra Gogoi and Jogen Bora is explained by petitions filed

by their learned advocates. Prayer is allowed. Seen the application filed by the learned special public prosecutor for two weeks time to take steps.

Prayer is allowed. The case was fixed for order. The Hon''ble High Court vide order, dated 15.09.2011 passed in Criminal Revision Petition No.

326/2011 has asked this Court to proceed as per provision of law against the person who had forged the Ext-37 (certified copy of the order

dated 05.06.1995 passed by the Hon''ble High Court in Civil Rule No. 2223/1995). On perusal of this document, it is seen that there are thirty

petitioners and the names of the petitioners from Sl. No. 21 to 30 are typed in different ink. Normally in cause title names of the parties are typed

serially from the first page to the next page if the first page does not cover all the names of the parties. In this order the shape of letter and colour of

the ink from Sl. No. 21 to 30 are different from the rest. If the order was typed continuously the ink of the latter after Sl. No. 30 would have been

same. Prima facie this document (Ext. 37) is of doubtful character. In view of the direction given by the Hon''ble High Court I have decided to

proceed against the wrong doer and for this purpose the original record of Civil Rule No. 2223/1995 is required. The Registrar General of

Hon''ble Gauhati High Court is therefore requested to send the original record of Civil Rule No. 2223/1995. The necessary order on summoning

witnesses already examined as directed by the Hon''ble High Court would be passed after receiving the application from the learned Special Public

Prosecutor. Fixing 25.10.2011 for receiving the original record.

It appears from the order that the records of the Civil Rule No. 2223/1995 was again called for.

The learned counsel for the accused-petitioner has submitted that in view of the order, dated 15.09.2011, passed in Criminal Revision Petition

No. 326/2011 by this Court, the learned trial court could not have called for the record of the aforesaid Civil Rule No. 2223/1995, as the order,

dated 24.08.2011 calling for, inter alia, the record of the said Civil Rule was set aside by this Court.

In view of the above facts, it appears that the order, dated 24.08.2011, which was set aside vide the order, dated 15.09.2011 in Criminal

Revision Petition No. 326/2011, included the order passed by the learned Sessions Judge, Assam to call for the records of the Civil Rule No.

2223/1995 also. Therefore, the order, dated 12.10.2011, passed by the learned Special Judge, Assam in the aforesaid Special Case No.

29(A)/2001 calling for the said record again is in derogation of the order of this Court in Criminal Revision Petition No. 326/2011. Therefore, the

said records could not have been called for by the learned Special Judge, Assam.

On perusal of the records of the learned trial court, it appears that it has been reflected in the order, dated 25.10.2011 that the learned Special

Public Prosecutor made an application for adjournment on that day stating that the State Government was considering to prefer an appeal against

the order, dated 15.09.2011, passed by this Court in Criminal Revision Petition No. 326/2011. But, on perusal of the whole records, it could not

be found that any appeal has been preferred against that judgment, and therefore, the judgment passed by this Court in Criminal Revision Petition

No. 326/2011 attains finality. Therefore, as stated above, the learned trial court could not have called for the records of Civil Rule No. 2223/1995

in violation of the order, passed in the said Criminal Revision Petition.

Therefore, the order, dated 12.10.2011 is set aside. So far the subsequent orders are concerned, the Non Bailable Warrant of Arrest issued

against the present petitioner has already been recalled in view of order of this Court. Therefore, the subsequent orders in respect of the present

accusedpetitioner passed in the aforesaid case by the learned Special Judge, Assam are set aside.

Accordingly, this criminal revision petition stands disposed of.

Send down the LCR along with a copy of this judgment.