SWAPAN KUMAR CHATTERJEEversusCENTRAL BUREAU OF INVESTIGATION

                        [2019] 3 S.C.R. 713                             713


                SWAPAN KUMAR CHATTERJEE                                 A
                                 v.
           CENTRAL BUREAU OF INVESTIGATION
                 (Criminal Appeal No. 15 of 2019)
                        JANUARY 04, 2019                                B
         [A. K. SIKRI AND S. ABDUL NAZEER, JJ.]
      Code of Criminal Procedure, 1973:
       s. 311 – Power under – Scope of – Held: The power should
be exercised with great caution and circumspection and should be        C
invoked by the court only to meet the ends of justice – In the facts
of the present case, the application for summoning the witness, ought
to have been rejected.
      Allowing the appeal, the Court
       HELD: 1. The power conferred under Section 311 Cr.P.C.           D
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 re-examination or further examination, necessary          E
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. [Para 12][716-F-H]
                                                                        F
      2. 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 the handwriting expert
was allowed in the year 2004. However, prosecution has failed to
call him in court for his examination. Thereafter, multiple
applications have been filed to summon him and all of them have         G
been allowed. However, the prosecution has failed to procure
his attendance in the court. [Para 14][717-B-C]
     3. Despite the orders dated 28.07.2011 and 15.09.2014
passed by the High Court in criminal revision applications,
                                                                        H
                                713
714            SUPREME COURT REPORTS                         [2019] 3 S.C.R.


A     whereby prosecution was given last opportunity to procure
      attendance of the witness and it was 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, the trial court
      has allowed the application filed by the prosecution for summoning
      the witness, which order has been confirmed by the High Court.
B
      The High Court ought to have rejected the application of the
      prosecution for summoning the witness. [Paras 15 and 16][717-
      D-F]
             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      15 of 2019.
C
            From the Judgment and Order dated 04.05.2017 of the High Court
      of at Calcutta in CRR No. 440 of 2015.
            P.S. Datta, Sr. Adv., Ms. Anwesha Saha, Fuzail Ahmad Ayyubi,
      Advs. for the Appellant.
            Vikramjeet Banerjee, ASG, V. D. Makheja, Sr. Adv., Sachin
D
      Sharma, P. K. Dey, T. A. Khan, A. K. Sharma, Mukesh Kumar Maroria,
      Advs. for the Respondent.
            The Judgment of the Court was delivered by
            S. ABDUL NAZEER, J. 1. Leave granted.
E           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 examination of one
      witness Mr. H.S. Tuteja.
            3. Brief facts necessary for disposal of this appeal are as under:
F
             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
G     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.
H     The Public Prosecutor filed a petition praying for examination of
  SWAPAN KUMAR CHATTERJEE v. CENTRAL BUREAU OF                                 715
        INVESTIGATION [S. ABDUL NAZEER, J.]

handwriting expert Mr. H.S. Tuteja, which was allowed and a date was           A
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
                                                                               B
the Prosecutor was accepted by the Magistrate with a direction that the
schedule is fixed on and 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            C
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.
                                                                               D
      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        E
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.
       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            F
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.                             G
        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.
                                                                               H
716             SUPREME COURT REPORTS                           [2019] 3 S.C.R.


A           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
B     appearing for the parties.
             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
C           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
D           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
E     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.
F
            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
G     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.
H
  SWAPAN KUMAR CHATTERJEE v. CENTRAL BUREAU OF                                  717
        INVESTIGATION [S. ABDUL NAZEER, J.]

       13. Where the prosecution evidence has been closed long back             A
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.
                                                                                B
       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 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             C
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             D
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     E
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         F
application of the prosecution for summoning the witness, Mr. H.S. Tuteja.
      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.               G


Kalpana K Tripathy                                            Appeal allowed.


                                                                                H