Swapan Kumar Chatterjee vs Central Bureau Of Investigation

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

JUDGMENT

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 Signature Not Verified Digitally signed by

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

ASHWANI KUMAR Date: 2019.02.09 11:20:51 IST Reason:

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

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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.

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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.

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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.

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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.

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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.

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