Case Note & Summary
The Supreme Court allowed the appeal filed by Swapan Kumar Chatterjee against the order of the Calcutta High Court confirming the Trial Court's permission to examine a handwriting expert, Mr. H.S. Tuteja, as a prosecution witness under Section 311 of the Code of Criminal Procedure, 1973. The case originated from a complaint lodged in 1983 by P.N. Khanna before the CBI, Economic Offences Wing, Calcutta, leading to the registration of CBI case No.7/E/83 under Sections 477A, 471, 468, 420, and 120B of the Indian Penal Code, 1860, and Section 5(1)(c)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 against the appellant and three others. After investigation, a chargesheet was filed and trial commenced. Twenty-nine prosecution witnesses were examined. In 2004, the prosecution filed a petition to examine handwriting expert Mr. H.S. Tuteja, which was allowed. However, despite multiple summons and adjournments over thirteen years, the prosecution repeatedly failed to produce the witness. The Calcutta High Court, in CRR No. 3436 of 2006 disposed of on 28.07.2011, granted a last opportunity to the CBI to procure the witness, directing that failure would result in the trial proceeding without further adjournments. Despite this, the Trial Court continued to allow adjournments. On 15.09.2014, the High Court again directed expeditious conclusion of trial within six months. On 25.11.2014, the appellant was examined as DW-1, and on the same day, the prosecution filed yet another application to examine Mr. Tuteja, which was allowed by the Trial Court on 05.12.2014 and confirmed by the High Court on 04.05.2017. The Supreme Court held that the power under Section 311 CrPC must be exercised with great caution and circumspection, only to meet the ends of justice, and not to allow abuse of process. The court noted that the prosecution had failed to produce the witness for 13 years despite multiple opportunities and last-chance directions, and that allowing further examination would cause great prejudice to the accused. The court observed that the High Court ought to have rejected the application. Consequently, the Supreme Court allowed the appeal, quashed the orders of the High Court and Trial Court, and dismissed the prosecution's application for summoning Mr. H.S. Tuteja.
Headnote
A) Criminal Procedure - Section 311 CrPC - Power to Summon Material Witness - The power under Section 311 CrPC is discretionary and must be exercised with great caution and circumspection, only to meet the ends of justice and not to allow abuse of process. The court must consider the facts and circumstances, including delay and prejudice to the accused. (Paras 10-13) B) Criminal Procedure - Section 311 CrPC - Delay and Laches - Where prosecution evidence has been closed long back and reasons for non-examination of a witness earlier are not satisfactory, summoning the witness at a belated stage would cause great prejudice to the accused and should not be allowed. Successive applications for recall of a witness should not be encouraged. (Paras 13-14) C) Criminal Procedure - Section 311 CrPC - Abuse of Process - In a case registered in 1983, where 29 prosecution witnesses were examined, and the prosecution failed to produce a handwriting expert for 13 years despite multiple opportunities and last-chance directions from the High Court, allowing further examination under Section 311 CrPC amounts to an abuse of process and causes serious prejudice to the accused. (Paras 14-16)
Issue of Consideration
Whether the High Court and Trial Court were justified in allowing the prosecution's application under Section 311 CrPC to examine a handwriting expert after 13 years of repeated failures to produce him, despite earlier last-chance directions and the accused having already been examined as a defence witness.
Final Decision
The Supreme Court allowed the appeal, quashed the orders of the High Court dated 04.05.2017 and the Trial Court dated 05.12.2014, and dismissed the prosecution's application for summoning Mr. H.S. Tuteja.
Law Points
- Section 311 CrPC
- power to summon material witness
- abuse of process
- delay in trial
- prejudice to accused
- last opportunity
- closure of prosecution evidence
