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Case Number

Crl. M.C 1324/2009

Attorney(S)

Mr. Arvind Nigam, Sr. Advocate with Mr. Kawal Nain, Ms. Bhavya Nain and Ms. Kavita, Advocates
Mr. Narender Mann, Special Public Prosecutor for CBI with Mr. Manoj Pant, Advocate

Judges

Sunil Gaur, J.

Acts

Sections 420/467/468/471 read with Section 120-B of IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988.
Section 311 of Cr.P.C
Section 313 of Cr.P.C

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioner (Rita Singh) is facing trial in Criminal Complaint No. 42/01 titled CBI v. Rita Singh for offences under Sections 420, 467, 468, 471 read with Section 120-B of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.

At the stage of final hearing, the petitioner filed an application under Section 311 of the Code of Criminal Procedure (Cr.P.C.) seeking to examine three witnesses:

Mr. B.B. Sharma, DGM (Operation & Administration) of Mesco Airlines (purported panchnama witness);
Mr. S.S. Batra, the then Company Secretary alleged to have signed a letter dated 1 March 1996 from M/s. Mideast (India) Pvt. Ltd. to Mr. B.B. Huria (GM, IFCI) requesting issuance of an NOC; and
A handwriting expert to establish that the letter dated 3 May 1996 (Ex.PW32.A / Ex.P-32.A) purportedly bearing the petitioner's signature does not, in fact, bear her signature.

The trial court dismissed the Section 311 application by order dated 16 March 2013, holding that the witnesses were not necessary and would not assist in the just decision of the case. The petitioner challenged that order before the court issuing this opinion.

Legal Issues Presented

Whether the trial court erred in refusing to permit the petitioner to examine the three witnesses sought to be examined under Section 311 Cr.P.C.
Whether the evidence sought to be led under Section 311 Cr.P.C. was essential for the just decision of the case such that the trial court's discretion ought to be exercised in favour of permitting those witnesses.

Arguments of the Parties

Petitioner's Arguments

Section 311 Cr.P.C. mandates permitting fresh evidence if it is necessary for the just decision of the case.
Petitioner sought to examine specific witnesses (B.B. Sharma, S.S. Batra and a handwriting expert) to rebut prosecution evidence: to show certain seized documents were not recovered from MESCO, to clarify the provenance of a letter dated 1 March 1996, and to challenge the authenticity of signatures on Ex.PW32.A.
The contention was supported by reliance upon several precedents (listed in the opinion) to demonstrate the correct approach under Section 311 Cr.P.C.

Respondent's Arguments

Examination of the second witness in respect of documents recovered by panchnama Ex.PW-11/1 (D-26) would be mere multiplicity of evidence; Mr. B.B. Sharma only signed the panchnama and not the recovered documents, so his examination would not alter the evidentiary position.
Mr. S.S. Batra's deposition is unnecessary because it is not disputed that he wrote the letter dated 1 March 1996 to Mr. B.B. Huria; his testimony would not affect the prosecution case on conspiracy since the prosecution did not allege that Mr. S.S. Batra met accused Y.V. Luthra to give shape to a conspiracy.
Examination of a handwriting expert is unnecessary because the petitioner did not deny signing Ex.PW32.A in her Section 313 Cr.P.C. statement; she stated the signatures looked like hers but that she did not remember signing such a document. The respondent submitted the application was misconceived and filed only to delay a trial pending for over a decade.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
T. Nagappa v. Y.R. Muralidhar (2008) 5 SCC 633	Cited by petitioner to support the proposition that Section 311 Cr.P.C. permits reception of fresh evidence if necessary for a just decision.	Considered by the Court in reviewing the legal position on Section 311; did not lead the Court to overturn the trial court's exercise of discretion to refuse the witnesses.
Kalyani Baskar v. M.S. Sampooram (2007) 2 SCC 258	Cited by petitioner to support the proposition regarding admission of fresh evidence under Section 311 Cr.P.C.	Considered; the Court observed the legal position emerging from cited decisions but found no reason to interfere with the trial court's decision.
Ronald Wood Mathams v. State of West Bengal (1995) 1 SCC 216	Cited by petitioner in support of the Section 311 proposition.	Considered as part of the authorities relied upon; Court nonetheless upheld trial court's view that the evidence was not essential.
Arivazhagan v. State (2000) 3 SCC 328	Cited by petitioner on the scope of Section 311 Cr.P.C.	Taken into account by the Court when assessing the legal principles but did not change the outcome.
Selvi 3. Jayalalitha v. State (2000) 9 SCC 754	Cited by petitioner in support of the general rule on fresh evidence under Section 311.	Considered; the Court concluded the evidence sought was not essential, so interference was not warranted.
Mohanlal Shamji Soni v. Union of India AIR 1991 SC 1346	Cited by petitioner for principles relating to reception of evidence under Section 311.	Viewed by the Court in framing the legal position; did not persuade the Court to allow the Section 311 application.
Rajindra Prasad v. The Narcotic Cell AIR 1999 SC 2292	Cited by petitioner to buttress arguments on Section 311 discretion.	Considered by the Court in its survey of precedent; the Court nonetheless declined to disturb the trial court's order.
P. Sanjeeva Rao v. State of A.P. AIR 2012 SC 2242	Cited by petitioner on the exercise of judicial discretion under Section 311.	Referred to in the Court's consideration of authorities; did not alter the Court's conclusion upholding trial court's refusal.
P. Chhaganlal Daga v. M. Sanjay Shaw (2003) 11 SCC 486	Cited by petitioner for the proposition concerning admission of additional evidence.	Considered among the cited decisions; Court found no reason to interfere with the trial court's assessment of necessity.
Zahira Habibulla H. Sheikh v. State of Gujarat AIR 2004 SC 3114	Cited by petitioner on procedural protections and reception of evidence (as relied upon by petitioner).	Noted by the Court while reviewing the cited jurisprudence; did not change the outcome of dismissing the petition.
Surender @ Kalwa v. State (GNCT) 2012 (V) AD (Delhi) 721	Cited by petitioner as authority relating to admission of evidence under Section 311.	Considered by the Court but the trial court's reasoning that the witnesses were unnecessary was left undisturbed.
Deepak v. State 2012 (1) JCC 230 (Delhi)	Cited by petitioner in support of the Section 311 contention.	Included in the Court's review of authorities; did not lead to interference with the trial court order.
Radeka Chaudhary v. NCT of Delhi 2012 (3) JCC 1773	Cited by petitioner for the proposition on Section 311 and fresh evidence.	Taken into account in the Court's assessment; the Court concluded the evidence was not essential and dismissed the petition.

Court's Reasoning and Analysis

The Court proceeded by first acknowledging two fundamental positions set out in the opinion:

An accused has a right to a fair trial and procedural rules meant to ensure justice must be scrupulously followed; and
The discretion under Section 311 Cr.P.C. to permit reception of further evidence must be exercised judiciously and the determinative factor is whether the evidence sought is essential for the just decision of the case.

The Court summarized the objective of Section 311 Cr.P.C. as avoiding failure of justice due to mistakes by either party in bringing valuable evidence on record or leaving ambiguity in evidence, and reiterated that the court must decide whether the proposed evidence is essential to a just decision.

The Court then examined the trial court's analysis in paragraphs 10–12 of the impugned order with respect to each of the three witnesses sought to be examined:

On Mr. B.B. Sharma (panchnama witness)

The trial court noted Mr. B.B. Sharma had signed the panchnama prepared during an Income Tax raid but had neither signed the inventory nor the specific documents (Ex.PW11/5) claimed to have been recovered.
Because the annexures to the panchnama listed only document numbers out of a large grouping and Mr. Sharma had not signed the inventories or the particular documents, merely stating that a particular set was not recovered without any record or proof would amount to nothing.
The trial court observed that the deposition of PW-11 (the Income Tax officer who conducted the raid) could be used to test evidentiary value, and that Sharma's deposition would make no material difference; hence he was unnecessary for the just decision.

On Mr. S.S. Batra (author of the 01.03.96 letter)

The trial court observed that it was not disputed that Mr. S.S. Batra had written the letter dated 01.03.96 addressed to Mr. B.B. Huria (PW-2).
The court found that testimony from Mr. Batra that he had not met accused Y.V. Luthra would not advance the petitioner’s case because the prosecution had not alleged that Batra met Y.V. Luthra to give shape to a criminal conspiracy.
At best, Batra could only testify to his own presence or absence at a place/time, which would not serve the purpose for which his deposition was sought; the trial court therefore considered him immaterial and unnecessary.

On the handwriting expert (regarding Ex.PW32.A)

The petitioner had stated in answer to Question No. 89 in her Section 313 Cr.P.C. statement that the signatures at point Q-7 on Ex.PW32.A appeared to look like hers but did not belong to her as she did not remember signing any such document.
PW-40 (Rabi Lal Thapa) had testified that the signatures on Ex.PW32.A were those of the petitioner and had also testified about his own writing and faxing of documents at the petitioner's asking.
The trial court noted that handwriting expert evidence by itself is not conclusive, and that a contrary opinion by another expert would neither conclusively strengthen nor weaken the evidentiary value of the earlier expert; the expert evidence must be assessed in the light of attendant facts and circumstances.
Accordingly, the trial court held that a further expert's deposition would not materially affect the evidentiary position.

After reviewing the trial court's reasoning and the material on record, this Court found no reason to take a different view. The Court emphasized that the question whether evidence sought under Section 311 is essential lies within the court's jurisdiction and concluded that, on the facts and in light of the trial court's analysis, the proposed evidence was not essential for the just decision of the case.

Holding and Implications

DISMISSED.

Implications:

The petition challenging the trial court's order refusing to permit examination of the three witnesses under Section 311 Cr.P.C. is dismissed; the trial court's order dated 16 March 2013 is upheld.
The immediate effect is that the petitioner will not be permitted in this forum to call Mr. B.B. Sharma, Mr. S.S. Batra or an additional handwriting expert as sought in the Section 311 application; the trial will proceed without the additional evidence sought by the petitioner in that application.
The Court expressly refrained from commenting on the merits of the underlying criminal case so as not to prejudice either party at trial.
No new legal principle or precedent was laid down by the Court beyond application of established principles concerning the discretionary and judicious exercise of Section 311 Cr.P.C.; the decision is an affirmation of the trial court's exercise of discretion on the facts presented.

Note: This summary is prepared exclusively from the text of the provided opinion and does not add or infer facts or legal holdings beyond what the opinion itself states.

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Ms. Natasha Singh Petitioner v. Central Bureau Of Investigation (State)

ORDER

1. Petitioner is facing trial in Criminal Complaint No. 42/01 titled as CBI v. Rita Singh for the offences under Sections 420/467/468/471 read with Section 120-B of IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988. At the stage of final hearing, petitioner had preferred an application under Section 311 of Cr.P.C for getting examined Mr. B.B Sharma, DGM (Operation & Administration) of Mesco Airlines, Mr. S.S Batra, the then Company Secretary, who had purportedly signed letter of 1st March, 1996 from M/s. Mideast (India) Pvt. Ltd. to Mr. B.B Huria, G.M (IFCI), requesting issuance of NOC, and Handwriting Expert to establish that letter of 3rd May, 1996 (Ex.P-32.A) purportedly signed by petitioner does not bear her signatures.

2. Trial court vide impugned order of 16th March, 2013 dismissed petitioner's aforesaid application by observing that the witnesses sought to be got examined by petitioner as accused are not necessary and shall in no way assist in just decision of the case.

3. At the hearing, learned senior counsel for petitioner had vehemently contended that Section 311 of Cr.P.C mandates permitting of fresh evidence if it is necessary for just decision of this case. To assert so, reliance was placed upon decisions in T. Nagappa v. Y.R Muralidhar.(2008) 5 SCC 633; Kalyani Baskar v. M.S Sampooram(2007) 2 SCC 258; Ronald Wood Mathams v. State of West Bengal(1995) 1 SCC 216; Arivazhagan v. State(2000) 3 SCC 328; Selvi 3. Jayalalitha v. State(2000) 9 SCC 754; Mohanlal Shamji Soni v. Union of IndiaAIR 1991 SC 1346; Rajindra Prasad v. The Narcotic Cell AIR 1999 SC 2292; P. Sanjeeva Rao v. State of AP AIR 2012 SC 2242; P. Chhaganlal Daga v. M. Sanjay Shaw(2003) 11 SCC 486; Zahira Habibulla H. Sheikh v. State of GujaratAIR 2004 SC 3114; Surender @ Kalwa v. State (GNCT)2012 (V) AD (Delhi) 721; Deepak v. State2012 (1) JCC 230 (Delhi) and Radeka Chaudhary v. NCT of Delhi2012 (3) JCC 1773.

4. Learned counsel for respondent had drawn the attention of this Court to paragraphs No. 10 to 12 of the impugned judgment to support it and it was submitted that examination of second witness in respect of documents recovered vide panchnama Ex.PW-11/1 (D-26) is just multiplicity of evidence and even if the witness Mr. B.B Sharma sought to be got examined in respect of the aforesaid documents had signed the panchnama and not the recovered documents, it makes no difference. Regarding examining Mr. S.S Batra as defence witness, it was asserted by respondent's counsel that his deposition is totally unnecessary as it is not disputed on behalf of prosecution that Mr. S.S Batra had written a letter of 1 March, 1996 to Mr. B.B Huria. As regards examination of Handwriting Expert as defence witness in respect of signatures of petitioner on letter of 3 May, 1996 (Ex.PW-32.A), it was argued by respondent's counsel that petitioner-accused has not denied in her statement under Section 313 of Cr.P.C regarding her signing the letter (Ex.PW-32.A) and so, petitioner's application is misconceived and it has been filed just to delay the trial of this case, which is pending for more than a decade and so, this petition ought to be dismissed.

5. Both the sides have been heard. Impugned order, copy of charge-sheet and the material on record as well as the decisions cited have been meticulously considered and thereupon, I find that it is beyond any dispute that an accused has a right to fair trial and the rules of procedure designed to ensure justice have to be scrupulously followed and that delay alone cannot come in the way of administration of justice. It is equally true that an accused knows how to prove his defence, and what should be the nature of evidence is a matter which should not be left to the discretion of the court, but the issue whether the evidence sought to be led by invoking Section 311 of Cr.P.C is essential to the just decision of the case falls within the jurisdiction of the courts to determine.

6. The objective underlined in Section 311 of Cr.P.C is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the evidence led by the parties. The determinative factor is whether the evidence sought to be led is essential for the just decision of the case or not. The discretion conferred by Section 311 of Cr.P.C is to be exercised judiciously.

7. Having noted the legal position emerging from the decisions cited, this Court has scrutinized the impugned order and finds that the trial court has succinctly dealt with the relevance of three witnesses sought to be got examined by petitioner in paragraphs No. 10 to 12 of the impugned order, which are as under:-

“The first witness sought to be examined on behalf of applicant is Mr. B.B Sharma, who was a witness to the panchnama prepared by the Income tax department, during raid at the premises of Mideast (India) Ltd. in February, 1997. In the brief summary, submitted on behalf of applicant, it is stated that as per the allegations, photocopies of the letter head of IFCI Ex.PWll/5, allegedly having the photocopies of the impression signatures of accused Y.V Luthra, were recovered during the search and the panchnama Ex. PW11/1 (D-26) was prepared. It is claimed that the details of the papers seized are not mentioned in the panchnama and what was mentioned in the annexures (Inventory) attached to the same and in the inventories, recovery of the bunch marked Ex.PWll/5 has not been mentioned. Mr. B.B Sharma has signed the panchnama and he is sought to be examined on behalf of applicant to the effect that bunch Ex.PWll/5, was not recovered from the office of MESCO. As per the annexures to the panchnama, no details of the documents have been given and only document numbers are given which are numbering more than a thousand and the documents in question appearing at S. No. 91 out of total groupings of 106. The witness has not signed the inventory nor the documents in question, which were seized, having signed only the panchnama and so, simply by stating that a particular set of document which formed part of the document seized, as per panchnama, were not recovered, amounts to nothing, unless the witness is having record or proof of the documents which were seized. As regards the signatures of the witness not appearing on the documents seized, particularly Ex.PWll/5, the issue can be argued on behalf of the applicant/accused and in the light of the facts, evidentiary value can be put to the deposition of PW-11, the Income tax officer, by whom raid was conducted and the documents seized. Deposition of Mr. B.B sharma in the circumstances, shall make no material difference and the witness is not at all necessary for the just decision of the case.

The second witness sought to be examined on behalf of applicant is Mr. S.s Batra and as per the allegations, he had signed a letter dated 01.03.96 addressed to Mr. B.B Huria (PW-2) for issuance of first NOC and said letter was handed over by him to Mr. B.B Huria. In the brief summary, it is claimed that neither Mr. S.S Batra nor of the accused persons ever contacted accused Y.V Luthra for issuance of NOC and thus, it is claimed that the evidence is necessary to negate the evidence of criminal conspiracy. Mr. S.S Batra deposing that he had not met accused Y.V Luthra for issuance of NOC amounts to nothing, when it is not the case of the prosecution and no evidence to that effect has been adduced that Mr. S.S Batra had ever met accused Y.V Luthra, for giving shape to the criminal conspiracy. Mr. S.S Batra had written a letter dated 01.03.96 addressed to Mr. B.B Huria and this fact is not disputed on behalf of prosecution, whether or not other co-accused had met Mr. Y.V Luthra, Mr. S.S Batra would not be in a position to testify. At the most, he can testify that at a particular place at a particular time where he was present, none of the accused persons were present, but that is not the purpose of deposition of Mr. S.S Batra. This witness is totally immaterial and unnecessary.

As regards the examination of handwriting expert, it is in regard to signature of applicant on EX.PW32.A, letter dated 03.05.96 at pt. Q7 which as per the case of the prosecution is that of the applicant. In the application moved, the applicant has stated that in her statement u/S 313 CrPC, she had specifically stated that signatures appearing on the NOC dated 03.05.96 EX.PW32.A, although looked like that of her signatures, but same do not belong to her. The handwriting expert is sought to be examined to establish that those questioned signatures are not of applicant Natasha Singh. In reply to question no. 89, in statement u/S 313 CrPC, the applicant Natasha Singh stated that signatures at pt.Q7 on EX.PW32.A appeared to look of hers but those do not belong to her as she does not remember having put any signatures on any document, certified to be true copy, in a way, the applicant is stating the signatures at point Q-7 on EX.PW32.A looked like that of her but since she does not remember having put her signatures on any such document, so, same does not belong to her. PW-40 Rabi Lal Thapa has testified as to the signatures, as that of applicant Natasha Singh on EX.PW32.A, as well as his own writing on the document and also deposed as regards to having faxed the documents on the asking of the applicant. Even otherwise, the deposition by an handwriting expert by itself, cannot be conclusive proof. So, merely because PW-32 Sh. SL Mukhi, being an handwriting expert, had come to the conclusion that questioned signatures appearing at point Q-7 on EX.PW32.A resemble with the specimen signature of the applicant, a conclusion or deposition to the contrary, of another handwriting expert, shall in no way strengthen or weaken the evidentiary value of an handwriting expert, which has to be considered in the light of attending facts and circumstances, under which the questioned documents were signed.”

8. After having heard learned senior counsel for petitioner, I find no reason to take a different view than the one taken by the trial court as noted hereinabove. The evidence sought to be led by petitioner-accused is not at all essential for the just decision of this case. Consequently, this petition is dismissed while refraining to comment upon the merits of this case lest it may prejudice either side at trial.

Ms. Natasha Singh Petitioner v. Central Bureau Of Investigation (State)

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

On Mr. B.B. Sharma (panchnama witness)

On Mr. S.S. Batra (author of the 01.03.96 letter)

On the handwriting expert (regarding Ex.PW32.A)

Holding and Implications

Ms. Natasha Singh Petitioner v. Central Bureau Of Investigation (State)

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