Application U/s. 311 CrPC Cannot Be Dismissed On Ground That It Will Lead To Filling Of Loopholes In Prosecution's Case - SC

Senior Counsel Ramakrishnan Viraraghavan appeared on behalf of the Appellant. Counsel Shreeyash U Lalit appeared for the State. Senior Counsel SK Gangele and Counsel Bansuri Swaraj appeared for the accused.

In this case, the Appellant was the spouse of an advocate who was brutally murdered outside his office in 2015. Following the homicide, an FIR was registered with the Police Station for an offence punishable under Section 302 read with Section 34 of the IPC. The post-mortem report indicated that the homicide was caused due to a firearm injury. The accused were arrested during the course of the investigation.

Among the enclosures to the supplementary charge sheet were certificates of the nodal officers of certain cellular companies. Upon the commencement of the recording of evidence at the trial, these nodal officers were examined. The Station House Officer (SHO) – who had filled the supplementary charge-sheet and prepared a CD with call details of the co-accused – was also examined by the prosecution, and he admitted that he had not filed a certificate as required under Section 65B of the Indian Evidence Act in relation to the CD.

During the course of the trial, the CD had been produced but since it was found to be corrupted, an application was made to the trial court to requisition a copy of the CD which was available at the police station. On the next date of hearing, the SHO was required to produce the CD but he failed to do so.

An application (first application) was preferred to requisition the CD but it was rejected by the Trial Court on the ground that the evidence of the SHO had been recorded and the last opportunity had already been given to him to produce the CD.

The Appellant challenged the order of the Trial Court, and a Single Judge of the High Court allowed the Petition in 2020, noting that the CD was a vital piece of evidence and had been provided to all the accused along with the charge-sheet. Resultantly, the trial court was directed to take necessary steps for requisitioning the CD through the police station and for taking it on record from the SHO.

In 2021, another application (second application) was moved under Section 311 on behalf of the prosecution for summoning the decoding register.

The prosecution filed another application (third application) under Section 311 of CrPC stating that the court had taken on record the CD and a certificate under Section 65B of the Evidence Act, in pursuance of the order of the High Court admitting its previous application. By filing the third application, the prosecution sought permission to summon the certificate issuer and examine said witness in order to prove the certificate.

The prosecution also filed an application (fourth application) under Section 311 to summon the nodal officer of Idea and under Section 91 to produce the call data records of two mobile numbers.

The Trial Court allowed the third application but dismissed the fourth application. This order was challenged before the High Court.

In the meantime, the Trial Court dismissed the second application as well, on the grounds that the document did not form a part of the investigation and that it had not been obtained during the course of investigation. The Trial Court also recorded that the evidence of the prosecution stood closed.

The Appellant challenged this order before the High Court invoking its jurisdiction under Section 482 CrPC. The Single Judge of the High Court rejected the Petition. The High Court also set aside the order of the Trial Court that dismissed the fourth application.

The Appellant approached the Supreme Court challenging the order of the Trial Judge which dismissed the second application.

Analysing the provisions of Section 301 CrPC, the Supreme Court held that the bar under Section 301 CrPC was inapplicable to the case, as the application for the summoning of witness and for production of the decoding register was submitted by the State.

With regard to Section 311 of the CrPC, the Court analysed the statutory position of the provision and relied on a catena of judgments such as State of W.B. v. Tulsidas Mundhra, to opine that "The latter part of Section 311 states that the Court ―shall summon and examine or recall and re-examine any such person ―if his evidence appears to the Court to be essential to the just decision of the case‖. Section 311 contains a power upon the Court in broad terms. The statutory provision must be read purposively, to achieve the intent of the statute to aid in the discovery of truth." Further, the Court opined that the relevance of the decoding register clearly emerged from the statement of the nodal officer, and hence the effort of the prosecution to produce the decoding register which is a crucial and vital piece of evidence ought not to have been obstructed.

The Court also opined that the contention that the application should not have been allowed as it would lead to filling in the lacunae of the prosecution's case could not be an absolute bar to allowing an application under Section 311. Relying on cases like Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd., the Court opined that the resultant filling of loopholes on account of allowing an application under Section 311 is merely a subsidiary factor and the Court's determination of the application should only be based on the test of the essentiality of the evidence

On the basis of the position of law and the facts of the case, the Supreme Court allowed the application filed by the prosecution for the production of the decoding registers and for and for the summoning of the witnesses of the cellular companies for that purpose.