Re-Examining Witnesses

Source: The Hitavada      Date: 08 Jan 2018 12:31:16


 

 

 

 

 

 

 

 

 

 

The traditional view of locus standi has been that the person who is aggrieved or affected has the standing before the Court, that is to say, he only has a right to move the court for seeking justice. The orthodox rule
of interpretation regarding the locus standi of a person to reach the Court has undergone a sea of change with the development of constitutional law in India.

IN THE judgement of the case - Ratanlal v. Prahlad Jat & Others, delivered on September 15, 2017, Justice J. Chelameswar and Justice S. Abdul Nazeer, at the Supreme Court, have, while considering the scope and object of the re-examination of witnesses, held that though the appellant had locus standi to file appeal, the Sessions Judge was justified in rejecting the applications filed under section 311, Cr.P.C. by the prosecution witnesses (PW) 4 and 5.


Appeal in this case was directed against the order of the Rajasthan High Court’s Jaipur Bench passed on May 22, 2012 allowing the criminal application filed under section 482 Cr.P.C. and had set aside the order of April 24, passed by the Additional Sessions Judge, Sikar.


A charge-sheet was presented under section 302, 201, 342, 120-B IPC, against first two respondents and three others. Statements of 28 witnesses were recorded in the trial. The statements of Sawarmal and Chandri were recorded as of PW 4 and 5 respectively .
Thereafter, both moved applications before the trial court under section 311 of the Cr.P.C. for re-recording their statements on the ground that the previous statements were made under the influence of the Police.


In the applications these witnesses had stated that the first two respondents had no role in the incident. On April 24, 2012, the Sessions Judge dismissed the applications observing that 28 witnesses had already been examined in the case till then.
They were also cross-examined at length and it cannot be said that they were under any kind of pressure, and that applications were filed with a view to favour the accused persons.


The two accused Prahlad Jat and Mahavir moved the application before the HC for quashing the said Order and the HC allowed the applications of PW 4 and 5.
In the Black’s Law Dictionary, the meaning assigned to the term ‘locus standi’ is ‘ the right to bring an action or to be heard in a given forum’. One of the meanings assigned to the term ‘locus standi’ in Law Lexicon of Shri Ramanatha Aiyar, is ‘ a right of appearance in a Court of Justice’.


The traditional view of locus standi has been that the person who is aggrieved or affected has the standing before the Court, that is to say, he only has a right to move the court for seeking justice. The orthodox rule of interpretation regarding the locus standi of a person to reach the Court has undergone a sea of change with the development of constitutional law in India.


Now, the Constitutional Courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hyper-technical grounds. It is now well-settled that if the person is found to be not merely a stranger to the case, he cannot be non-suited on the ground of not having locus standi.
However, criminal trial is conducted largely by following the procedure laid down in Cr.P.C. Locus standi of the complainant is a concept foreign to criminal jurisprudence. Anyone can set the criminal law in motion except where the statute enacting or creating an offence indicates to the contrary.


This general principle is founded on a policy that an offence, that is an act or omission made punishable by any law for the time being in force, is not merely an offence committed in relation to the person who suffers harm but is also offence against the society. Therefore, in respect of such offences, which are treated against the society, it becomes the duty of the State to punish the offender.


It is thus clear that Article 136 does not confer a right to appeal on any party but it confers discretionary power on the Supreme Court to interfere in suitable cases. The exercise of power of the Court is not circumscribed by any limitation as to who may invoke it. It does not confer a right to appeal, it confers only to apply for special leave to appeal.


Therefore, there was no bar for the appellant to apply for special leave to appeal as he is an aggrieved person. This Court in exercise of its discretion, granted permission to the appellant to file the special leave petition on August 3, 2012 and the leave was granted on February 24, 2014.
In order to enable the Court to find out the truth and render a just decision, the salutary provisions of section 311 are enacted whereunder any Court by exercising its discretionary authority at any stage of inquiry, trial, or other proceeding, can summon any person as witness or examine any person in attendance though
not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute.


The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection.


Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order.
In this case, PW 4 and 5 were examined between November 29, 2010 and March 11, 2011.
They were cross-examined at length during the said period. During the police investigation and in their evidence, they had supported the prosecution story.


The Sessions Judge had recorded a finding that they were not under any pressure while recording their evidence. After a passage of 14 months, they have filed the application for their re-examination on the grounds that the statements made by them earlier were under pressure. They have not assigned any reasons for the delay in making the application. It is obvious that they had been won over. The Court finds no reason for allowing such an application. The Sessions Judge, therefore, was justified in rejecting the application. In the Supreme Court’s view, the Rajasthan HC was not right in setting aside the Sessions Court’s order.
In the result, the appellant succeeds and appeal is allowed. The HC’s order in S.B. Criminal Misc. petition 1679/2012 on May 22, 2012 is set aside. The Court also disposed of all the
pending applications.


The Court found from the records that after order of the HC, PWs 4 and 5 were re-examined before the trial court. The apex court directed the trial court to proceed with the matter without taking into consideration the evidence of PWs 4 and 5 recorded after the Order of the High Court.