Case BriefsHigh Courts

Bombay High Court: A.M. Badar, J., allowed a petition filed against the order of the Additional Sessions Judge whereby the application filed by the accused-petitioners for issuing summons to a witness for adducing evidence was rejected.

The petitioners, husband and in-laws of the complainant, were accused of offences punishable under Sections 498-A, 323, 504, 376, 109 read with 34 IPC. The complainant had alleged that the petitioners subjected her to cruelty and that her father-in-law committed rape on her on multiple occasions. After the conclusion of prosecution arguments, the petitioners moved an application before the trial court invoking its powers under Section 311 IPC for summoning one Dr D.C. Patil or his representative. It was contended that evidence of Dr D.C. Patil was essential for a just decision of the case, as the complainant got herself examined by the said doctor often, and on few occasions even on dates when the commission of rape is alleged. The application was, however, rejected by the trial court noting that it was filed at a belated stage only to fill lacunae in the defence case.

The High Court, at the outside, observed that the power of the court to summon a material witness has vast amplitude. For understanding the purport of the term “lacunae”, the Court relied on Rajendraprasad v. Narcotic Cell, (1999) 6 SCC 110. Relying on the discussion of the Supreme Court in the said case, the High Court observed: “Delay in applying for summoning the defence witness cannot be termed as ‘lacuna’ in the defence.” It was noted that the petitioners were pressing for Dr Patil’s examination disclosed the fact of an alleged rape to the doctor she was visiting regularly.

It was further noted that the trial court took noted the fact the complainant denied the prescription issued by Dr Patil after examining her. However, the trial took a shortcut by holding that the said prescription can bean exhibit for the purpose of identification and, therefore, it is not necessary to examine Dr Patil. The Court was of the view that the trial court erred in holding that by marking the prescriptions as exhibits for the purpose of identification, the purpose is served. It was observed: “Merely placing the document in original for the perusal of the court would not be adequate to prove the event embodied within the contents of such document. For proving the contents of those documents, a witness to the execution of the document is required to be examined. The document is required to be proved by examining the author thereof — trial court cannot look into such hearsay evidence by making it admissible in a circuitous way, by exhibiting the same.”

It was held that the petitioners had made out a case of summoning Dr Patil, as his evidence is necessary for a just decision of the case. the petition was allowed and the impugned order was set aside. [Khajasab Suleiman v. State of Maharashtra,              2019 SCC OnLine Bom 2919decided on 16-10-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara, J. entertained a criminal revision petition filed under Section 482 CrPC for quashing of the order passed by the lower Court.

The factual matrix of the case is that the victim worked as a Junior Engineer and she accused the petitioner who was a Contractor, of unnecessary calling and demanding sexual favors. The victim contended that the petitioner was continuously harassing her for many months. The victim further accused the petitioner of stalking her on social media and sending inappropriate messages. She further alleged that he used to chase her and when she strictly warned him not to indulge in these activities, then, he in connivance with some officials, got committed theft of two measurement books from her office and started blackmailing her. In this regard, he also filed one RTI application and under that pretext, he had stated that he will get everything resolved if she agrees to establish sexual relations with him. FIR was registered under Sections 354-A, 354-D, 379 and 506 IPC, 1860. After investigation, police filed a report under Section 173 CrPC and consequently, accused faced the trial. During the pendency of the trial, the victim through Public Prosecutor filed an application under Section 311 CrPC for placing on record one CD containing some vulgar remarks made by the accused. In the application, it was mentioned that such vulgar remarks had been made in the presence of one individual who was also a Government Contractor. The victim in the application contended that the CD was very material and necessary for the proper adjudication of the trial and similarly examination of the individual witness was also necessary to corroborate the allegation recorded in the CD.

Subsequently, the trial court had ordered the examination of the witness under Section 311 CrPC and also to put the electronic evidence on record about which the victim had already given reference. The petitioner challenged the order. 

The counsel for the petitioner Peeyush Verma, submitted two limbs of arguments, and the first was scope and power under Section 311 CrPC to summon such evidence at a belated stage and the second limb was that the application was simply a tactics played by the victim to drag on the prosecution and delay the outcome of the trial. On the contrary the counsel for the victim had placed reliance on Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374, where it was held that, “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.

It was observed by the Court that, powers to summon any witness can be invoked even if the evidence of both the sides were closed so long the Court retains the seasons of the criminal proceedings. Hence, the Section was not only limited for the benefit of the accused, but the Section was also a general provision which applied to all proceedings, enquiries and trials. 

To counter the arguments of the victim the counsel for the petitioner placed reliance upon Section 65 of the Evidence Act, wherein the mandatory requirement of Certificate being annexed with the electronic record was missing. The other contention was that the main allegation of the victim in the complaint was that the accused conducted theft of measurement books, whereas the police did not find any substance in her allegations and cancellation report was filed.

To repeal the above-mentioned contention, the Additional Advocate General, submitted that the aforementioned case the victim had made a false complaint, and then they can always take recourse to Section 182 of the Penal Code. He further contended that this was no ground to deny the leading of the additional evidence which related to vulgar remarks, it was also well noted that bare reading of this application under Section 311 CrPC which led to the passing of the impugned order was cryptic and did not contain the transcript of the CD. 

Court was of the opinion that there was no necessity to refer all the vulgar remarks in such kind of application because the victim had placed on record CD, which can always be played by the Court to decipher the allegations. This was not an order, but allegations of vulgar remarks by a lady and the possibility cannot be ruled out that to save her dignity, she might have restrained from reproducing the text of the audio recording. Even otherwise, in the absence of hearing the CD, no conclusion can be drawn that it did contain obscene language or not. Hence, the Court dismissed the petition as it did not find any merits. [Sham Singh v. State of Himachal Pradesh, 2019 SCC OnLine HP 1242, decided on 09-08-2019]