SUDEVANANDversusSTATE THROUGH CBI

                     [2012] 2 S.C.R. 139


                       SUDEVANAND                                 A
                              v.
                   STATE THROUGH CBI
             (Criminal Appeal No. 174 of 2012)

                     JANUARY 19, 2012
                                                                  B
[AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.]

      Code of Criminal Procedure, 1973: ss.311,· 391 -
Summoning of approver for cross-examination - Permission
for - Arrest of appellant and other accused in connection to      C
attempt on the life of the then Chief Justice of India - Two
months prior to that, Railways Minister was killed - Appellant
and PW-1 in connection with said case - While on remand,
PW-1 made a confessional statement and requested to be
allowed to become an approver - He was produced before a          D
Magistrate, before whom he made a statement u/s. 164 and
became approver - Subsequently approver made retraction
in 1978 in jail disowning his earlier statements - Conviction
of appellants u/ss. 115, 30711208, /PC r/w s.4(b) of Explosive
Substances Act, 1908 - Applications by appellants praying to      E
call for and taking on appeal record, the statement made by
approver, in jail and to summon the approver for further cross-
examination - Rejected by High Court - On appeal, held: High
Court erred in refusing to summon the approver for his further
examination as prayed for on behalf of appellants - Delay in      F
filing the applications ought not have been sole ground for
rejecting the same - Appellants were anyway not responsible
for the inordinate delay in their appeals, that remained
pending since 1976, being taken up for hearing - As long as
the appeals were pending, High Court ought to have
considered the appellants' request for summoning approver         G
for further cross-examination on merits, and in light of the
relevant legal provisions - High Court directed to summon
approver for his further examination by the appellants - Penal
                             139                                  H
   140      SUPREME COURT REPORTS            [2012] 2 S.C.R.


A Code, 1860 - ss.115, 30711208 - Explosive Substances Act,
  1908 - s.4(b).

       The prosecution case was that on March 20, 1975,
  the car in which the then Chief Justice of India was
  travelling, along with others stopped at the crossing and
8
  two live hand grenades were lobbed inside the car. The
  grenades, liowever, did not explode and the occupants
  of the car, including the Chief Justice of India, escaped
  unharmed. A case was registered and investigation was
  started by the Crime Branch of the Delhi Police. The case
C was handed over to the CBI. About two and a half months
  before the attempt on the life of the Chief Justice of India,
  'LNM', the Minister of Railways was killed in a bomb blast.
  In connection with that case, 'Su' (appellant) and one 'V'
  were arrested at Bhagalpur. On July 27, 1975 they were
D also arrested in the instant case relating to the attempt
  on the life of the Chief Justice and were brought to Delhi
  where they were sent on police remand from July 31,
   1975 to August 14, 1975. While on remand, 'V' made a
  confessional statement and requested to be allowed to
E become an approver. He was produced before a
   Magistrate on August 14, 1975, before whom he made a
   statement under Section 164, Cr.P.C. giving the details of
   the conspiracy to kill the Chief Justice of India. He was
   again produced before the Magistrate on August 22, 1975
F before whom he made a similar statement for grant of
   pardon under Section 306 Cr.P.C.
       The CBI completed investigation of the case and
  submitted charge-sheet against the three accused
G including the appellants and they were put on trial. The
  trial court convicted appellants 'Su' and 'Sa' under
  Sections 115, 307/120B, 'IPC and under Section 4(b) of the
  Explosive Substances Act, 1908.

     All the convicts filed appeals before the High Court.
H During pendency of the said appeal, certain
      SUDEVANAND v. STATE THROUGH CBI                    141


developments took place in 'LNM' murder case. That              A
case was also investigated by the CBI and in that case
too 'Su' and 'Sa' (along with others) were accused and
in that case also 'V' was granted pardon on becoming an
approver. An inquiry was made into the circumstances
in which 'V' made the confessional statement and was            8
tendered pardon to become approver. Following the
enquiry, on September 30, 1978 the statement of 'V' was
recorded at Danapur jail where he was lodged at that
time. The statement was recorded in the presence of the
Superintendent and the Jailor. The statement was also           c
recorded on a tape recorder. In this statement 'V' retracted
from his earlier statements incriminating himself and the
other accused in the case. He stated that his earlier
statements were obtained by the CBI by subjecting him
to great mental and physical torture. The retraction made       0
by 'V' was placed before the Chief Minister who
requested 'T', a former judge of the Bombay High Court
to give a report. The former judge of the Bombay High
Court gave his opinion that the conviction of all the
accused in the Chief Justice's case was based on
                                                                E
fabricated evidence of the approver and, therefore, the
High Court should be requested to consider the appeals
of the three accused keeping aside the approver's
evidence. Meanwhile, the trial of the 'LNM' murder case
was transferred from Bihar to Delhi. In the 'LNM' murder
case, 'V' was examined by the prosecution as PW.2 and           F
in course of his deposition before the court he said that
the statement made by him at Danapur jail was not
voluntary and was made on the basis of a statement
prepared and given to him in writing by the State
Government officers.                                            G

    Both 'Su' and 'Sa' were released on bail in 1986 after
remaining in jail for almost 11 years. In 1997-1998, that is
11 years after coming out of jail, the appellants filed three
criminal miscellaneous applications in the pending              H
    142      SUPREME COURT REPORTS            [2012] 2 S.C.R.


A appeals praying to call for and taking on the appeal
  record, the statement made by 'V', the approver, in
  Danapur jail on September 30, 1978, the affidavits of the
  officials of the Bihar Government filed in the transfer
  petition before the Supreme Court and the enquiry report
B of 'T'; to summon 'V', the approver (PW.1 in the case), for
  further cross-examination in terms of Section 145 of the
  Evidence Act and to call the evidence of 'V' recorded in
  the trial of 'LNM' murder case.

        · The High Court noted that it was within the
C   knowledge of the appellants that the approver had made
    the retraction in the year 1978 disowning his earlier
    statements but the three applications in question were
    filed after a lag of more than 20 years and primarily for
    that reason did not allow all the prayers made in the three
D   applications but granted the appellants only a limited and
    partial relief. The application for considering the record,
    certified copies etc. under Section 80 and other
    provisions under the Evidence Act, report of 'T' and other
    documents which may be admissible under the Evidence
E   Act was permitted. The applications for leading further
    evidence which would have entailed further time were
    dismissed, but the third application for considering those
    documents which were already placed on the record as
    per law was permitted. The instant appeals were filed
F   challenging the order of the High Court.

          Allowing the appeals, the Court

      HELD: 1. The delay in filing the applications should
  not have been the sole ground for rejecting the
G appellants' applications before the High Court. The High
  Court did not say that the appellants were in anyway
  responsible for the inordinate delay in their appeals, that
  remained pending since 1976, being taken up for hearing.
  That being the position, as long as the appeals were
H pending, the High r,ourt should have considered the
       SUDEVANAND v. STATE THROUGH CBI                     143

appellants' request for summoning PW.1 for further                A
cross-examination on merits, and in light of the relevant
legal provisions. Any further cross-examination of PW.1
would not have taken more than two or three days and
would not have contributed to any further delay in the
disposal of the appeal in any material way. [Para 18] [152-       B
H; 153-A-B]

     2. Not only 'V' who made diametrically opposite
statements but the CBI and the State (CID) seemed to be
at loggerheads with the one accusing the other of                 C
manipulating and using 'V' for its own designs. It is an
unusual case by any reckoning. It is obvious that one of
the two statements of 'V' is false. But it is very difficult to
say at this stage which of the statements is true and
which of the statement was made under the influence,
threat or coercion by the State officials or the CBI. The         D
position may be clear in case he is subjected to further
examination with reference to his statement made in
Danapur jail on September 30, 1978. Section 391, Cr.P.C.
is not limited to recall of a witness for further cross-
examination with reference to his previous statement. The         E
Appellate Court may feel the necessity to take additional
evidence for any number of reasons to arrive at the just
decision in the case. The law casts a duty upon the court
to arrive at the truth by all lawful means. [paras 27, 28, 30]
[158-D-H; 159-E-F]                                                F

    Mishri/al v. State of M. P. (2005) 10 SCC 701: 2005 (1)
Suppl. SCR 259; Hanuman Ram v. State of Rajasthan and
others (2008) 15 sec 652: 2008 (14) SCR 348 -
Distinguished.
                                                                  G
    3. The contention may be right that statement of 'V'
to have been made in jail has no. legal sanctity and it
came to be made and recorded in a manner completely
unknown to law but on that ground alone it would not be
correct and proper to deny the application of Section 391,        H
   144      SUPREME COURT REPORTS           (2012] 2 S.C.R.


A Cr.P.C. If on the testimony of the approver, a person is
  convicted by the trial court under Section 302 and 120-B
  etc., IPC and is sentenced to a life term and while the
  convict's appeal is pending before the High Court, the
  'approver' is found blabbering and boasting among his
B friends that he was able to take the Court for a ride and
  settled his personal score with the convict by sending
  him to jail to rot at least for 14 years. Such a statement
  would also be completely beyond the legal framework but
  can it be said that in light of such a development the
c convicted accused may not ask the High Court for
  recalling the approver for further examination. As a matter
  of fact, if some later statement, has come to be made in
  some legal ways, it may be admissible on its own without
  any help from Section 311 or Section 391 of the Cr.P.C.
0 It is only such statement or development which is
  otherwise not within the legal framework that would need
  the exercise of the Court's jurisdiction to bring it before
  it as part of the legal record. The High Court was in error
  in refusing to summon 'V', the approver (PW.1) for his
  further examination as prayed for on behalf of the
E appellants. Accordingly, that part of the High Court order
  is set aside and the High Court is directed to summon 'V'
  (PW.1) for his further examination by the appellants and
  if so desired by the CBI. The High Court may direct a
  member of the Registry of the rank of a Sessions Judge/
F Additional Sessions Judge to record the additional
  evidence of (PW.1). The examination of the witness by the
  appellants and the CBI must not go beyond two working
  days each so that the recording of his evidence should
   be complete in not more than four days. The Registrar
G recording the evidence would certify it and place before
   the Court and the Court shall then proceed to dispose of
   the appeals. [paras 31-33] [159-G-H; 160-A-G]

      4. The case relating to the attempt on the life of the
H CJI remains stuck up at the stage of the appeal even after
       SUDEVANAND v. STATE THROUGH CBI                      145

about 37 years of the occurrence. The other case of the            A
killing of 'LNM' is still mired before the trial court. In so
far as the instant case is concerned, the Chief Justice of
the Delhi High Court is requested to take notice of the
              •
inordinately long time for which these appeals are
pending before the High Court and to put a tab on them             B
so as to ensure that the appeals are disposed of without
any further delay and in any case not later than six
months from the date of the receipt/production of a copy
of this order. [para 35] [161-A-D]

    Zahira Habibulla H. Sheikh v. State of Gujarat (2004) 4        C
SCC 158: 2004 (3) SCR 1050; Pandit Ukha Kothe v. State
of Maharashtra 1964 (1) SCR 926; Satyajit Banerjee v. State
of wa. (2005) 1 sec 115
                      Case Law Reference:                          D
    2004 (3) SCR 1050               referred to      Para 15
    1964 (1) SCR 926                referred to      Para 15
    (2005) 1 sec 115                referred to      Para 16
                                                                   E
    2005 (1) Suppl. SCR 259         Distinguished Para 22
    2008 (14) SCR 348               Distinguished Para 23

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 174 of 2012.                                                   F

     From the Judgment and Order dated 22.11.2006 of the
High Court of Delhi at New Delhi in Criminal Appeal No. 443
of 1976, Criminal Misc. No. 5786 of 1997 and 5700 of 1998.
                             WITH                                  G
Criminal Appeal Nos. 175 and 176 of 2012.

     Arvind Kumar, Laxmi Arvind, Poonam Prasad, Pradeep
Kumar Mathur, R.S. Sharma, Feroze Ahmad, Arvind Tiwary,
Arvind Kumar, Arvind Kumar Tiwary (for S.C. Patel), M.L. Lahoty,   H
    146       SUPREME COURT REPORTS              [2012] 2 S.C.R.


A   Paban K. Sharma, Gargi B. Bharali, Sukumar Agarwal and
    Himanshu Shekhar for the Appellant.

      P.P. Malhotra, ASG, P.K. Dey, T.A. Khan, M. Khairati,
  Chetan Chawla, Shanti Shalini and Arvind Kumar Sharma (for
B P. Parmeswaran) for the Respondent.

          The Judgment of the Court was delivered by

          AFTAB ALAM, J. 1. Leave granted.

C      2. On March 20, 1975, at about 4.15 p.m. when the car in
  which Mr. Justice A.N. Ray, holding the office of the Chief
  Justice of India at that time, was travelling, along with his son
  Shri Ajoy Nath Ray and a Jamadar Jai Nand and the driver
  lnder Singh, stopped at the intersection of Tilak Marg and
  Bhagwan Dass road, at a stone throw distance from the
D Supreme Court of India, two live hand grenades were lobbed
  inside the car. Fortunately, the grenades did not explode and
  the occupants of the car, including the Chief Justice of India,
  escaped unharmed.

E      3. A case was registered and investigation was started by
  the. Crime Branch of the Delhi Police. But, as the police
  investigation did not make much headway, on June 30, 1975
  the case was handed over to the CBI. On the same day, one
  Santoshanand Avadhoot (appellant in Criminal appeal arising
F out of SLP (Criminal) 6625 of 2006) was arrested followed by
  the arrest of an advocate, namely, Ranjan Dwivedi (appellant
  in criminal appeal arising out of SLP (Crl.) No.6800/2006) on
  July 6, 1975.

       . 4. Here, it may be rioted that about two and a half months
G before the attempt on the life of the Chief Justice of India, Shri
  L.N. Mishra, the Minister of Railways in the Union Cabinet was
  killed in a bomb blast taking place during a function on the
  platform of Samastipur Railway Station. In connection with that
  case, Sudevanand Avadhoot (appellant in criminal appeal
H arising out of SLP (Crl.) No.6489/2006) and one Vikram alias
      SUDEVANAND v. STATE THROUGH CBI                    147
              [AFTAB ALAM, J.]
Jaladhar Das were arrested at Bhagalpur. On July 27, 1975 A
they were also arrested in the present case relating to the
attempt on the life of the Chief Justice and were brought to
Delhi where they were sent on police remand from July 31, 1975 .
to August 14, 1975. While on remand, Vikram made a
confessional statement and requested to be allowed to B
become an Approver. He was produced before a Magistrate
on August 14, 1975, before whom he made a statement under
Section 164 of the Code of Criminal Procedure (in short
"Cr.P.C.") giving the details of the conspiracy to kill the Chief
Justice of India. He was again produced before the Chief c
Judicial Magistrate on August 22, 1975 before whom he made
a similar statement for grant of pardon under Section 306
Cr.P.C.

     5. The CBI completed investigation of the case and
submitted charge-sheet against the three accused, namely, D
Sudevanand, Santoshanand and Ranjan Dwivedi and they were
put on trial in Sessions Case No.9/1976. Sudevanand and
Santoshanand were charged under Section 307 read with
Section 120-B of the Indian Penal Code and Section 4(b) of
the Explosive Substances Act, 1908. So far as Ranjan Dwivedi E
is concerned, he was charged jointly with the other two accused
under Section 120 B of the Penal Code only. At the conclusion
of the trial, the Additional Sessions Judge, Delhi vide his
judgment and order dated October 28, 1976 convicted
Sudevanand and Santoshanand under Sections 115, 307/ F
120B of the Penal Code and sentenced them to undergo
rigorous imprisonment for 7 years under Section 115 read with
120-B(1 ), 10 years for attempting to kill Chief Justice A. N. Ray
and three other occupants of the car and 7 years under Section
4(b) of the Explosive Substances Act, 1908. Ranjan Dwivedi G
was convicted under Section 115/120 8(1) of the Penal Code
and was sentenced to 4 years rigorous imprisonment.

    6. It may be noted here that Vikram, the Approver was
examined by the prosecution as PW.1 and according to the
appellants their conviction is mainly based on his evidence.    H
    148      SUPREME COURT REPORTS                 [2012] 2 S.C.R.


A       7. Against the judgment and order passed by the trial court,
    Ranjan Dwivedi filed appeal before the High Court on
    December 6, 1976 which is registered as Criminal Appeal
    No.436/1976. Sudevanand and Santoshanand jointly filed a
    separate appeal which is registered as 443/1976.
B
       8. After the appellants' trial was over, and they were
  convicted and sentenced by the trial court, as noted above, and
  after they had filed their appeals before the High Court against
  the judgment and order passed by the trial court, certain
  developments took place in the L. N. Mishra murder case. That
C case was also investigated by the CBI and in that case too
  Sudevanand and Santoshanand (along with others) were
  accused and in that case also Vikram was granted pardon on
  becoming an Approver. According to his statements made
  before the Magistrates both the killing of L. N. Mishra and the
D attempt on the life of Chief Justice of India were parts of a larger
  conspiracy, at the instance of the same organisation and a
  common group of persons.

       9. On August 30, 1978, the Chief Minister of Bihar wrote
E a highly confidential letter to the Prime Minister of India, a copy
  of which was endorsed to the DIG (CID) Bihar. In pursuance of
  the Chief Minister's letter, the DIG (CID) is said to have ma.de
  an inquiry into the circumstances in which Vikram @ Jaladhar
  Das had made the confessional statement and was tendered
F pardon to become Approver. Following the enquiry, on
  September 30, 1978 the statement of Vikram was recorded
  at Danapur jail where he was lodged at that time. The statement
  was taken in the question and answer form and it was recorded
  in the presence of Dr. D. Ram, Superintendent; Danapur
G Hospital, (Ex-officio Jail Superintendent) and Haider Ali, the
  Jailor. The statement was also recorded on a tape recorder.
  In this statement Vikram retracted from his earlier statements
  incriminating himself and the other accused in the case. He said
  that his earlier statements were obtained by the CBI by
  subjecting him to great mental and physical torture. He was
H
       SUDEVANAND v. STATE THROUGH CBI                         149
               [AFTAB ALAM, J.]

beaten up and tortured to such an extent that he agreed to make        A
whatever statement CBI wanted him to make. The retraction
made by Vikram was placed before the Chief Minister who
requested Mr. Tarkunde, a former judge of the Bombay High
Court to give a report in light of the statement made by Vikram
in jail on September 30, 1978. Mr. Tarkunde is said to have            B
given his opinion that the conviction of all the accused in the
Chief Justice's case was based on fabricated evidence of the
Approver and, therefore, the High Court should be requested
to consider the appeals of the three accused keeping aside
the Approver's evidence. We need not go any further in this            c
matter, as all this was plainly outside the legal frame-work.

      10. It needs, however, to be noted that upset by these
developments, the CBI moved this Court in Transfer Petition
(Crl.) No. 69/1979 praying for the transfer of the trial of the L.N.
Mishra murder case outside Bihar. In the transfer petition though      D
the State of Bihar was not formally made a party, a number of
allegations were made against some of its officers. In those
circumstances, the concerned officers after obtaining
permission from the State Government, filed affidavits/
applications denying the allegations made against them in the          E
transfer petition filed by the CBI and supporting the veracity of
the retraction made by Vikram in Dahapur jail on September
30, 1978 disowning the earlier statements made by him. In the
overall facts and circumstances of the case, however, this Court
deemed just and proper to transfer the trial of the L.N. Mishra        F
murder case from Bihar to Delhi where it now remains pending
as Sessions Case No. 1/2006 (after being renumbered) before
the Additional Sessions Judge, Delhi.

     11. It is curious to note that in the L.N. Mishra murder case     G
Vikram was examined by the prosecution as PW.2 and· in
course of his deposition before the court he said that the
statement made by him at Danapur jail was not voluntary but
he was forced to make the statement under coercion and
threats by the Chief Secretary, Law Secretary and Home
                                                                       H
    150      SUPREME COURT REPORTS                 [2012] 2 S.C.R.


A   Secretary, Government of Bihar and the SP and the DSP in
    the State Police. He said in his deposition before the court that
    his statement in jail was made on the basis of a statement
    prepared and given to him in writing by the State Government
    officers.
B
        12. Coming back to the appellant's appeal pending before
  the Delhi High Court, both Sudevanand and Santoshanand
  were released on bail in 1986 after remaining in jail for almost
  11 years. In 1997-1998, that is to say 11 years after coming
C out of jail, the appellants filed three criminal miscellaneous
  applications in the pending appeals. Criminal miscellaneous
  application No. 5786/97 was filed on September 24, 1997
  praying to call for and taking on the appeal record the statement
  made by Vikram, the Approver, in Danapur jail on September
  30, 1978, the affidavits of the officials of the Bihar Government
D filed in the transfer petition before this Cc:.1rt and the enquiry
  report of Justice Tarkunde. The second application (criminal
  miscellaneous) No.5700/98 was filed on September 16, 1998
  to summon Vikram, the Approver (PW.1 in the case), for further
  cross-examination in terms of Section 145 of the Evidence Act.
E The third application (criminal miscellaneous) No.6300/98 was
  filed on October 15, 1998 praying to call the evidence of
  Vikram, the Approver (PW.2), recorded in the trial of L.N.
  Mishra murder case.

F      13. The Delhi High Court took up all the three criminal
  miscellaneous applications and disposed them of by order
  dated November 22, 2006. The High Court noted that it was
  within the knowledge of the appellants that the Approver had
  made the retraction in the year 1978 disowning his earlier
G statements but the three applications in question were filed after
  a lag of more than 20 years and primarily for that reason did
  not allow all the prayers made in the three applications but
  granted the appellants only a limited and partial relief. In the
  operative portion of the order the High Court observed and
  directed as follows:
H
       SUDEVANAND v. STATE THROUGH CBI                       151
               [AFTAB ALAM, J.]

     "The last application moved by the appellant for               A
     considering the record, certified copies etc. u/s 80 and
     other provisions under the Evidence Act, report of justice
     V.M. Tarkunde and other documents which may be
     admissible under the Evidence Act has to be permitted.
     This prayer is being kept open and would be considered         B
     as per law.

     Succinctly stated, the applications for leading further
     evidence which would have entailed further time are
     hereby dismissed, but the third application for considering    C
     those documents which have already been placed on the
     record as per law, is hereby permitted. This case is fixed
     for final arguments on 6th December, 2006 at 12.15 P.M.
     The case would be taken up on day to day basis."

Against the order passed by the High Court, the appellants          D
have come to this Court in these appeals.

      14. Mr. Lahoty and Mr. Arvind Kumar, counsel appearing
for the appellants in the three appeals placed before the Court
passages from the statement of Vikram recorded in Danapur           E
jail on September 30, 1978 describing the manner in which his
earlier statements, incriminating himself and the other accused,
were obtained by the CBI. Referring to the latter statement of
Vikram, counsel submitted that denial to further cross-examine
him in light of his statement of September 30, 1978 would
cause grave prejudice to the appellants and would lead to a         F
miscarriage of justice. Mr. Lahoty stated that the accused in the
L.N. Mishra murder case had earlier come to this court for
quashing the trial proceedings and their appeal (Crimin~!
Appeal No. 126 of 1987) was heard along with the case of
Abdul Rehman Antulay and was disposed of by a common                G
judgment reported in (1992) 1 SCC 225. In paragraph 98 of
the judgment, the Court noted the submission made on behalf
of the appellants that a very unusual feature of the case was
the exchange of charges and counter charges between the CBI
and the Bihar (CID) of false implication and frame up against       H
    152     SUPREME COURT REPORTS               [2012] 2 S.C.R.


A each other. According to the Bihar (CID), the CBI was guilty of
  frame up against the members of Anand Marg, while according
  to CBI, the Bihar (CID) had been deliberately proceeding
  against innocent persons while letting of the real culprits. Mr.
  Lahoty submitted that as a result of the Central Investigating
B Agency and the State Investigating Agency acting at cross
  purpose, the case had become highly murky to the great
  detriment of the appellants. He further submitted that in that
  situation if the appellants are not allowed the opportunity to
  further cross-examine Vikram, the Approver (PW.1), it would
c be highly unfair and unjust to them. He also submitted that the
  Delhi High Court was wrong in rejecting the applications made
  by the appellants on the ground of delay.

       15. Mr. Arvind Kumar in support of the plea raised by the
  appellants placed reliance on the decision of this Court in
D Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC
  158, commonly known as the Best Bakery Case. He also
  pressed into service a decision of this Court in Pandit Ukha
  Kolhe v. State of Maharashtra, 1964 (1) SCR 926 (939-940).

E      16. So far as the Best Bakery Case is concerned, we see
  absolutely no application of that decision to the facts of the
  present case. Suffice to note here that in Satyajit Banerjee v.
  State of WB., (2005) 1 SCC 115, the Court explained the very
  exceptional nature of the Best Bakery Case and observed that
F the decision cannot be applied to all cases against the
  established principles of criminal jurisprudence (See paragraph
  25 & 26 in Satyajit Banerjee).

        17. We also fail to see how the decision in Pandit Ukha
    Kolhe might help the appellants in the present appeals.
G
         18. We agree with Mr. Lahoty's submission that the delay
  in filing the applications should not have been the sole ground
  for rejecting the appellants' applications before the High Court.
  The High Court does not say that the appellants were in anyway
H responsible for the inordinate delay in their appeals, that
       SUDEVANAND v. STATE THROUGH CBI                         153
               [AFTAB ALAM, J.] .

remains pending since 1976, being taken up for hearing. That          A
being the position, as long as the appeals were pending, the
High Court should have considered the appellants' request for
summoning PW.1 for further cross-examination on merits, and
in light of the relevant legal provisions. Mr. Lahoty is also right
in submitting that any further cross-examination of PW.1 would        B
not have taken more than two or three days and would not have
contributed to any further delay in the disposal of the appeal in
any material way.

    19. But the question remains to be examined whether the ·C
law permits the summoning of PW.1 for the reason as stated
on behalf of the appellants.

     20. Mr. P.K. Dey, the counsel appearing for the CBI,
strongly opposed the appellants' prayer for summoning Vikram, ·
the Approver (PW.1 ), for further cross-examination in light of D
his statement recorded in Danapur jail on September 30, 1978.
Learned counsel submitted that Vikram had made his
confessional statements completely voluntarily and on three
different occasions. He was produced before the Magistrate
on August 14, 1975 for recording his statement under Section E
164 Cr.P.C. He was then produced before the Chief .Judicial
Magistrate on August 22, 1975 for recording his statement for
grant of pardon under Section 306 Cr.P.C. Finally, he was
produced before the trial court as PW.1 where he was
examined first by the prosecution and was then subjecte F
 to a lengthy cross-examination on behalf of. the accused. On
one of the three occasions he made the slightest complaint
hat his statements were obtained under coercion or threats.
He was also produced before the Magistrate many times for the purp
se of remand and for other purposes, such as taking G
cognizance, commitment of the case to the court of Sessions
and also before the trial court where the trial proceeded and
got concluded and at no point of time he gave any indication
that his statements/evidence were given under any coercion,
threats or inducement.
                                                                   H
    154       SUPREME COURT REPORTS                [2012) 2 S.C.R.


A       21. Mr. Dey also submitted that the statement of Vikram
  that was recorded in Danapur jail on September 30, 1978 had
  no legal sanctity, as it was recorded in a manner and by means
  completely unknown to law. It also did not qualify as the previous
  statement within the meaning of Section 145 of the Evidence
B Act as in fact, it was later in time than the deposition of PW.1
  in this case before the trial court. He also referred to passages
  from the deposition of Vikram, the Approver, made in the trial
  of the L.N. Mishra murder case in which he was examined as
  PW.2 where he stated that his statement of September 30,
c 1978 recorded in Danapur jail was not voluntary but it was made
  under threats from the top officials of the State Government.
    1




       22. Mr. Dey submitted that the statement made by Vikram
  in jail on September 30, 1978 could never be the basis for
  summoning him for further cross-examination at the stage of
D the appeal and in support of this submission relied upon· a
  decision of this Court in Mishrilal v. State of M.P., (2005) 10
  SCC 701. In that case, one of the prosecution witnesses (PW.2)
  had supported the prosecution case before the trial court but
  before the Juvenile Court that was trying some of the juvenile
E accused in the same case he did not support the prosecution
  case and as a result, the juvenile accused were acquitted of
  the charge under Section 307 IPC for having made an attempt
  on the life of this witness. After his evidence before the Juvenile
  Court, he was again summoned before the trial court where the
F other accused were facing trial and was confronted with the
  evidence he had given before the Juvenile Court. This Court
  found and held that the procedure adopted by the Sessions
  Judge was not in accordance with law and in paragraphs 5 and
  6 of the judgment observed and held as follows:
G
          "5. The learned Counsel for the appellants seriously
          attacked the evidence of PW.2 Mokam Singh. This
          witness was examined by the Sessions Judge on 6-2-
          1991 and cross-examined on the same day by the defence
          counsel. Thereafter, it seems, that on behalf of the accused
H
  SUDEVANAND v. STATE THROUGH CBI                      155
          [AFTAB ALAM, J.]
persons an application was filed and PW.2 Mokam Singh        A
was recalled. PW.2 was again examined and cross-
examined on 31-7-1991. It may be noted that some of the
persons who were allegedly involved in this incident were
minors and their case was tried by the Juvenile Court.
PW.2 Mokam Singh was also examined as a witness in           8
the case before the Juvenile Court. In the Juvenile Court,
he gave evidence to the effect that he was not aware of
the persons who had attacked him and on hearing the
voice of the assailants, he assumed that they were some
Banjaras. Upon recalling, PW.2 Mokam Singh was               C
confronted with the evidence he had given later before the
Juvenile Court on the basis of which the accused persons
were acquitted. of the charge under Section 307 IPC for
having made an attempt on the life of this witness.

 6. In our opinion, the procedure adopted by the Sessions D
 Judge was not strictly in accordance with law. Once the
 witness was exam.ined-in-chief and cross-examined fully,
 such witness should not have been recalled and re-
 examined to deny the evidence he had already given
.before the court, even though that witness had given an E
 inconsistent statement before any other court or forum
 subsequently. A witness ~ould be confronted only with a
 previous statement made by him. At the time of
 examination of PW.2 Mokam Singh on 6.2.1991, there
 was no such previous statement and the defence counsel · F
 did not confront him with any statement alleged to have
 been made previously. This witness must have given some
 other version before the Juvenile Court for extraneous
 reasons and he should not have been given a further
 opportunity at a later stage to completely efface the G
 evidence already given by him under oath. The courts have
 to follow the procedures strictly and cannot allow a witness
 to escape the legal action for giving false evidence before
 the court on mere explanation that he had given it under
 the pressure of the police or for some other reason.
                                                              H
    156       SUPREME COURT REPORTS                 [2012] 2 S.C.R.


A         Whenever the witness speaks falsehood in the court, and
          it is proved satisfactorily, the court should take a serious
          action against such witnesses."

         23. The decision in Mishrilal was followed in Hanuman
    Ram v. State of Rajasthan and others, (2008) 15 SCC 652.
B   The case of Mishrilal had come to this Court after the appeal
    court had maintained the conviction and sentence passed
    against the accused. But Hanuman Ram came at the
    intermediate stage when the trial court was directed by the High
    Court to recall two prosecution witnesses under Section 311
C   of the Cr.P.C. under similar circumstances. In Hanuman Ram
    too, two of the witnesses (PWs 3 and 5) who had supported
    the prosecution case before the trial court did not support the
    case of the prosecution before the Children's Court where one
    of the accused in the case who was a minor was being tried.
D   Before the trial court an application was made under Section
    311 Cr.P.C. for summoning those two witnesses for cross-
    examination with reference to their statements before the
    Children's Court. The trial court did not accept the prayer and
    rejected the petition. On an application in revision, the High
E   Court intervened in favour of the accused and directed the trial
    court to recall and re-examine the two witnesses. In appeal
    against the High Court order, this Court following the earlier
    decision in .Mishrilal, held that there was no legal foundation for
    recalling the witnesses under Section 311 Cr.P.C. and set
F   aside the High Court judgment.

       24. At first sight, the decisions in Mishrilal and Hanuman
  Ram seem to clinch the issue arising in the case. But, on a
  deeper examination, it would appear that the decision in
  Mishrilal did not interpret Section 311 Cr.P.C. defining the
G import, scope and ambit of the provision contained therein. It
  rather said that on the facts of the case, the provision had no
  application and the procedure adopted by the trial court was
  not strictly in accordance with law. Now, the interpretation of a
  legal provision and its application to a set of facts. are two
H
       SUDEVANAND v. STATE THROUGH CBI                       157
               [AFTAB ALAM, J.]
different exercises requiring different approaches.                  A
"Interpretation" means the action of explaining the meaning of
something. For interpreting a statutory provision, the court is
required to have an insight into the provision and unfold its
meaning by means of the well-established canons of
interpretation, having regard to the object, purpose, historicism    B
of the law and several other well-known factors. But, what is
important to bear in mind is that the interpretation of a legal
provision is always independent of the facts of any given case.
"Application" means the practical use or relevance (of
something to something); the application of a statutory              c
provision, therefore, is by definition case related and as
opposed to interpretation, the application or non-application of
a ~tatutory provision would always depend on the exact facts
of a given case. Anyone associated with the process of
adjudication fully knows that even the slightest difference in the   0
facts of two cases can make a world of difference on the
question whether or not a statutory provision can be fairly and
reasonably applied to it. Keeping in mind what is said here if
we read Mishrilal, it would be evident that in the over all facts
of that case, the Court was satisfied that the statement of the      E
witness (PW.2, Mokam Singh) before the Juvenile Court was
for some extraneous reasons and, therefore, he should not have
been allowed an opportunity to completely efface the evidence
already given by him under oath. The Court with its vast
experience of the way criminal justice system works in our
country was in a manner commenting upon the serious and              F
widespread malady of prosecution witness being won over by
the accused. Once the Court came to realise that the witness
was gained over before he was examined in the Juvenile Court,
it naturally felt that at least he should not have been allowed to
spoil the other case too and it would, therefore, logically follow   G
that his recall and re-examination in the trial of the other
accused before the Sessions Court was an abuse of Section
311 of the Cr.P.C. To us, it appears that it was mainly due to
that reason that the Court frowned upon the latter evidence of
                                                                     H
    158      SUPREME COURT REPORTS                 [2012] 2 S.C.R.


A   PW.2 taken by the Sessions Court on his recall after his
    examination before the Juvenile Court.

       25. Moreover, in Mishrilal the question that came up for
  consideration before the Court was whether the deposition of
B Mokam Singh (PW.2) before the Juvenile Court would come
  within the meaning of "previous statement" under Section 145
  of the Evidence Act so as to justify his recall for further cross-
  examination confronting him with his deposition before the
  Juvenile Court. The Court answered the question in the negative
C pointing out that at the time of his examination earlier before
  the Sessions Court there was no such statement with which he
  could be confronted by the defence.

        26. In Hanuman Ram, on identical facts and for the sarne
    reasons the Court simply followed the decision in Mishrilal.
D
       27. The facts of the case before us are quite different. It is
  not only Vikram who is making diametrically opposite
  statements but the CBI and the State (CID) seem to be at
  loggerheads with the one accusing the other of manipulating
E and using Vikram for its own designs. It is an unusual case by
  any reckoning.

        28. It is obvious that one of the two statements of Vikram
  is false. But unlike Mishrifal or Hanuman Ram where the Court
  was able to sense without difficulty that the witnesses' ·
F depositions before the Juvenile Court and the Children's Court
  respectively were false, it is very difficult to say at this stage
  which of the statements is true and which of the statement was
  made under the influence, threat or coercion by the State
  officials or the CBI. The position may be clear in case he is
G subjected to further examination with reference to his statement
  made in Danapur jail on September 30, 1978.

        29. The matter may be looked at from another angle.
    Section 391 of the Cr.P.C. provides as follows:
H
      SUDEVANAND v.. STATE THROUGH CBI                        159
              [AFTAB ALAM, J.]
    "391. Appellate Court may take further evidence or               A
    direct it to be taken.- (1) In dealing with any appeal under
    this Chapter, the Appellate Court, if it thinks additional
    evidence to be necessary, shall record its reasons and
    may either take such evidence itself, or direct it to be taken
    by a Magistrate, or, when the Appellate Court is a High          8
    Court, by a Court of Session or a Magistrate.

    (2) When the additional evidence is taken by the Court of
    Session or the Magistrate, it or he shall certify such
    evidence to the Appellate Court, and such Court shall
    thereupon proceed to dispose of the appeal.                      C

    (3) The accused or his pleader shall have the right to be
    present when the additional evidence is taken.

    (4) The taking of evidence under this section shall be
                                                                     0
    subject to the provisions of Chapter XXlll, as if it were an
    inquiry."

    30. It is, thus, to be seen that the provision is not limited
to recall of a witness for further cross-examination with
reference to his previous statement. The Appellate Court may         E
feel the necessity to take additional evidence for any number
of reasons to arrive at the just decision in the case. The law
casts a duty upon the court to arrive at the truth by all lawful
means. This is another reason why we feel any reliance on
Mishrilal that considered the recall of a witness in the context     F
of Section 145 of the Evidence Act is quite misplaced in the
facts of this case.

     31. Mr. Dey contended that Vikram's statement that he is
alleged to have made in jail has no legal sanctity and it came       G
to be made and recorded in a manner completely unknown to
law. Mr Dey may be right but on that ground alone it would not
be correct and proper to deny the application of Section 391
of the Cr.P.C. Take the case where, on the testimony of the
Approver, a person is convicted by the trial court under Section
                                                                     H
    160       SUPREME COURT REPORTS               [2012] 2 S.C.R.


A 302 and 120-B etc. of the Penal Code and is sentenced to a
  life term. After the judgment and order passed by the trial court
  and while the convict's appeal is pending before the High Court,
  the 'Approver' is found blabbering and boasting among his'
  friends that he was able to take the Court for a ride and settled'
8 his personal score with the convict by sending him to jail to rot
  at least for 14 years. Such a statement would also be
  completely beyond the legal framework but can it be said that
  iil light of such a development the convicted accused may not
  ask the High Court for recalling the Approver for further
C examination.

       32. As a matter of fact, if some later statement, has come
  to be made in some legal ways, it may be admissible on its
  own without any help from Section 311 or Section 391 of the
  Cr.P.C. It is only such statement or development which is
D otherwise not within the legal framework that would need the
  exercise of the Court's jurisdiction to bring it before it as part
  of the legal record.

       33. In light of the discussions made above, we have no
E hesitation in holding that the High Court was in error in refusing
  to summon Vikram, the Approver (PW.1) for his further
  examination as prayed for on behalf.of the appellants. We,
  accordingly, set aside that part of the High Court order and
  direct the High Court to summon Vikram (PW.1) for his further
F examination by the appellants and if so desired by the CBI. For
  the sake of convenience, the High Court may direct a member
  of the Registry of the rank of a Sessions Judge/Additional
  Sessions Judge to record the additional evidence of Vikram
  (PW.1 ). The examination of the witness by the appellants and
  the CBI must not go beyond two working days each so that the
G recording of his evidence should be complete in not more than
  four days. The Registrar recording the evidence would certify
  it and place before the Court and the Court shall then proceed
  to dispose of the appeals.

H         34. The appeals are thus allowed.
       SUDEVANAND v. STATE THROUGH CBI                        161
               [AFTAB ALAM, J.]
     35. Before parting with the record of the case we are           A
constrained to say that we are distressed beyond words to find
that the case relating to the attempt on the life of the CJI
remains stuck up at the stage of the appeal even after about
37 years of the occurrence. We are informed that the other case
of the killing of Shri L.N. Mishra is still mired before the trial   B
court. We do not wish to make any comment on that case as
that is the subject matter of Writ Petition (Criminal) Nos. 200
and 203 of 2011 that remains pending before this Court. But
so far as the present case is concerned, we would request the
Chief Justice of the Delhi High Court with all the strength at our   c
command to take notice of the inordinately long time for which
these appeals (Criminal Appeal Nos.436 & 443 of 1996) are
pending before the High Court and to put a tab on them so as
to ensure that the appeals are disposed of without any further
delay and in any case not later than six months from the date
                                                                     0
of the receipt/production of a copy of this order.        ·

D.G.                                           Appeals allowed.