Summary
In the trial for the murder of an advocate in Mhow, the prosecution applied under Section 311 CrPC to summon cellular companies' officers with the decoding registers. These would decode tower locations in call records already in evidence. The trial court rejected the application and closed the prosecution evidence the same day, and the Madhya Pradesh High Court affirmed. The Court held that the bar in Section 301 CrPC did not stop the victim's widow from appealing, since the State itself had made the application. Section 311's first part is discretionary, but its second part obliges the court to summon a witness whose evidence is essential to a just decision, at any stage and even after evidence closes. The registers were essential and the application predated closure of evidence. The appeal was allowed and the trial directed to conclude by 31 October 2022.
Issues
- Whether the victim's spouse could pursue the challenge, given the limits on private participation in Section 301 CrPC.
- Whether the courts below rightly refused, under Sections 311 and 91 CrPC, to summon cellular company officers with decoding registers needed to read coded tower locations, on the grounds that the registers were not part of the charge-sheet, the evidence was closed and the application was belated.
Provisions considered
- Section 311, Code of Criminal Procedure, 1973The second part obliges the court to summon or recall a witness whose evidence is essential to a just decision, at any stage, even after prosecution evidence closes. The decoding registers met that test. (¶¶ 28, 29, 32, 37, 42)
- Sections 91 and 207, Code of Criminal Procedure, 1973Section 91 empowers summoning documents necessary or desirable for a trial and operates independently of Section 207 on supplying police-report documents. That the registers were not in the charge-sheet was no ground to refuse. (¶¶ 33, 34, 35)
- Section 301, Code of Criminal Procedure, 1973Section 301 limits a private person instructing a pleader in a prosecution conducted by the Public Prosecutor. It did not bar the victim's spouse from appealing where the application had been made by the State. (¶¶ 21, 26, 27)
Held
- Section 301 does not bar the victim's spouse from pursuing this appeal. The application was the State's, and she did not seek to replace the Public Prosecutor. Under Mina Lalita Baruwa, the court has a participatory role and must use Section 311 to get at the truth. (¶¶ 21, 22, 24, 26, 27)
- Section 311 is a broad power to be read purposively to aid the discovery of truth. Its first part is discretionary, while its second part obliges the court to summon or recall a witness whose evidence is essential to a just decision. Closure of evidence is no bar, and the power must be used judicially, not to cause unfair prejudice. (¶¶ 28, 29, 30, 31, 32, 42, 43)
- A nodal officer had testified that tower locations in the call records were in code and could be read only with the company's decoding chart. The decoding registers were therefore essential to link the accused's locations to the towers. Refusing them because they were not part of the investigation or charge-sheet was extraneous to Sections 91 and 311. (¶¶ 35, 36, 37)
- That additional evidence may fill a lacuna is only a subsidiary factor, and essentiality is the test. The registers only help read evidence already on record, so the accused's fair trial right is not prejudiced. An oversight in the prosecution may be corrected, as Zahira Habibullah Sheikh and Rajendra Prasad hold. (¶¶ 38, 39, 40)
- The application had been filed about eight months before the prosecution evidence was closed on the very day it was rejected, so it was not belated. Swapan Kumar Chatterjee was therefore distinguishable. (¶ 41)
Result
Appeal allowed. The orders of the High Court and trial court are set aside and the prosecution's application to produce the decoding registers through the companies' witnesses is allowed. The trial is to conclude by 31 October 2022, and one accused's interim medical bail is extended to that date.