SWAPAN KUMAR CHATTERJEE versus CENTRAL BUREAU OF INVESTIGATION

Citation: [2019] 3 S.C.R. 713 · Decided: 04-01-2019 · Supreme Court of India · Bench: A.K. SIKRI · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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SWAPAN KUMAR CHATTERJEE
v.
CENTRAL BUREAU OF INVESTIGATION
(Criminal Appeal No. 15 of  2019)
JANUARY 04, 2019
[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
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.
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
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]
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
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,
[2019] 3 S.C.R. 713
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SUPREME COURT REPORTS
[2019] 3 S.C.R.
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.
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.
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
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.
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:
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
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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 

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