Himachal Pradesh High Court
Rakesh Kumar @ Rakesh Thakur vs Vikram Sood on 24 July, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.M.M.O. No.121 of 2017
.
Judgment Reserved on: 03.07.2017
Date of decision: 24.07.2017
Rakesh Kumar @ Rakesh Thakur ....Petitioner-Accused
Versus
Vikram Sood ....Respondent-Complainant
Coram
The Hon'ble Mr.Justice Sandeep Sharma,Judge.
Whether approved for reporting ? Yes.
For the Petitioner: Mr.Neeraj Gupta, Advocate.
For the Respondent: Mr.Sunil Mohan Goel, Advocate.
Sandeep Sharma,J.
By way of instant petition filed under Section 482 of the Code of Criminal Procedure, a prayer has been made on behalf of the accused-petitioner (hereinafter referred to as the 'accused') for quashing and setting aside the order dated 17.12.2016 (Annexure P-4) passed by Judicial Magistrate Ist Class, Manali in Complaint No.357-1 of 2012, whereby application having been filed by the accused under Section 311 of the Code of Criminal Procedure (for short 'Cr.P.C.') has been dismissed.
Whether the reporters of Local Papers may be allowed to see the judgement? Yes.
::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 22. Briefly stated facts, as emerged from the record, are that the respondent-complainant (hereinafter referred to as the 'complainant') instituted a complaint against the .
accused under Section 138 of the Negotiable Instrument Act (for short the 'Act') in the Court of learned Judicial Magistrate Ist Class, Manali, stating therein that the accused allegedly approached complainant on 14.10.2009 and made a request to advance a sum of Rs.19,05,000/- for expansion of business. Complainant advanced a sum of Rs.19,05,000/- to the accused, who in lieu of the same issued three cheques in favour of the complainant towards discharge of his liability.
However, fact remains that aforesaid cheques were dishonoured, as a result of which, complainant was compelled to initiate proceedings under Section 138 of the Act.
3. Learned trial Court, taking note of preliminary evidence adduced on record by the complainant, put notice of accusation to the accused under Section 138 of the Act, which he pleaded not guilty and claimed trial. It also emerged from the record that complainant examined himself as well as other witnesses in support of the complaint.
Thereafter statement of accused was also recorded under Section 313 Cr.P.C. on 16.6.2015. Accused, after closure of defence evidence, moved an application under Section 311 read with Section 91 Cr.P.C. seeking permission of learned ::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 3 trial Court to examine Assessing Officer, Income Tax Commissioner, Mandi Range District Mandi, H.P., (for short AO, ITC, Mandi) as a witness on the premise that the office of .
Additional Commissioner of Income Tax Mandi Range, District Mandi, issued a show cause notice on 10.5.2016, thereby imposing penalty under Section 271-E of Income Tax Act, 1961 upon the accused. The accused, with a view to prove his defence in the complaint instituted by complainant, intended to prove the aforesaid notice issued by AO, ITC, Mandi by examining him as a witness. Accused, by way of application, stated before the Court below that he wants to examine AO, ITC, Mandi, as a witness as he has sent legal notice to the accused regarding the payment of loan amounting to Rs.9,75,000/- in the relevant Assessment Year 2011-2012, which is quite necessary for the just adjudication of the above titled case as the complainant has submitted before the Commissioner of Income Tax that he has received the aforesaid amount from the accused.
4. Apart from above, accused submitted before the Court below that he has received notice during the pendency of the case, as such, he wants to tender the legal notice on record and to examine the aforesaid witness to prove the said document. Complainant, by way of filing reply to the application, opposed the aforesaid prayer of examination of AO, ITC, Mandi, stating therein that application has been ::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 4 filed at a belated stage in order to prolong the proceedings and, as such, the same deserves to be dismissed being not maintainable and without any merit. Complainant further .
stated before the Court below that proposed witness is not necessary to be produced and examined for just and final decision of the present case.
5. Learned trial Court vide order dated 17th December, 2016 dismissed the aforesaid application filed by accused on the ground that accused has already been given an opportunity to lead his evidence and as such, filing of the application, at this stage, appears to be an attempt to prolong the case. Learned Court below, after having gone through the pleadings, also came to conclusion that accused in his statement recorded under Section 313 Cr.P.C. has stated that the cheques in question pertain to his account, however, the same were given to complainant as a security and he has already been afforded an opportunity to lead defence evidence and in this regard he has produced Chuni Lal as a witness in defence. Learned trial Court while passing impugned order further concluded that accused has failed to mention as to on what date the alleged notice from the AO, ITC. Mandi was received by him.
6. Mr.Neeraj Gupta, learned counsel representing the petitioner-accused, while inviting the attention of this Court to the application having been filed by the accused, ::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 5 stated that it was specifically mentioned in the application that accused has received legal notice from AO, ITC. Mandi, regarding repayment of loan amount of Rs.9,75,000/- in the .
relevant Assessment Year 2011-2012 during the pendency of the case. Mr.Gupta, further contended that since notice dated 10.5.2016 was placed on record alongwith application, no adverse inference could be drawn by Court for non-
mentioning of date of alleged notice in the application.
Mr.Gupta further contended that since notice, as referred above, was received after closure of defence evidence, application for placing the same and producing the witness could only be filed thereafter by the applicant. Mr.Gupta further contended that application for examining AO, ITC, Mandi was filed well within reasonable time i.e. 13.6.2016, after receipt of notice dated 10.5.2016 and as such, objection raised by the complainant that the application has been filed at a belated stage is not sustainable. While referring to provisions contained in Section 311 Cr.P.C., Mr.Gupta vehemently contended that impugned order passed by learned trial Court is not sustainable as the same is not in consonance with the provisions of Section 311 Cr.P.C., wherein Court has been given vast powers of summoning, re-calling any witness at any stage of proceedings, if his/her evidence appears to be essential for just decision of the case.
::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 67. Mr.Gupta further contended that impugned order passed by learned trial Court is harsh and oppressive and no prejudice, whatsoever, would have caused to opposite .
party, in case learned trial Court had allowed the accused to examine the official of the Income Tax Department, rather it would have aided in bringing the real controversy to the fore between the parties. He further contended that if the mandatory part of Section 311 Cr.P.C. is read, the paramount consideration of Court should be of doing justice to the case and Court can and ought to examine witness at any stage and if it results in filling up of lacuna or loopholes then in that situation it is a subsidiary factor.
8. Mr.Sunil Mohan Goel, learned counsel representing the respondent-complainant, while opposing the aforesaid submissions having been made by learned counsel representing the petitioner-accused, contended that there is no illegality and infirmity in the impugned order dated 17.12.2016 and as such same deserves to be upheld.
Mr.Goel further contended that it is undisputed that the evidence of the complainant was closed on 1.1.2015 and thereafter accused led his evidence, which was also closed on 16.6.2015. While inviting attention of this Court to the application having been filed by the accused, Mr.Goel contended that the same has been filed with a view to delay the proceedings because averments contained in the ::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 7 application nowhere suggest that any explanation worth the name has been/was rendered in the same qua inordinate delay in maintaining the application for examining the .
official of the Income Tax Commissioner, Mandi Range, District Mandi. Mr.Goel further contended that since this application was hopelessly time barred and there was no explanation for delay, learned Court rightly dismissed the same. He further stated that acceptance of prayer having been made by the accused in the application at this stage would have certainly amounted to filling up of lacuna, which has definitely crept in the defence set up by the accused and as such impugned order dated 17.12.2016 passed by learned trial Court deserves to be upheld.
9. Mr.Goel, while inviting the attention of this Court to the statement having been made by the accused under Section 313 Cr.P.C., contended that defence as set up by the accused before the Court below is/was that cheques in question were issued as security and it was none of the case of the accused that he had already returned the amount as stands mentioned in the alleged notice issued by the AO, ITC, Mandi. Mr.Goel further contended that though perusal of Section 311 Cr.P.C. clearly suggests that Court may, at any time, summon any person as a witness, or recall and re-
examine any such person, provided that the same is ::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 8 necessary, for proper decision of the case, but this power is required to be exercised sparingly and with circumspection.
10. I have heard learned counsel for the parties and .
gone through the record of the case.
11. Before ascertaining the merits of the submissions having been made by learned counsel representing the respective parties vis-à-vis impugned order dated 17.12.2016 passed by the learned trial Court, this Court deems it fit to take note of the provisions of law as contained in Section 311 Cr.P.C., which clearly suggests that the Court may, at any time, summon any person as a witness, or recall and re-examine any witness provided that same is essentially required for just decision of the case.
Section 311 Cr.P.C. provides as under:-
"311. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case."
12. This Court, after having carefully perused the aforesaid provisions of Section 311 Cr.P.C., is of the view that second part of provisions contained in this Section rather makes it mandatory for the Court below to examine witness at any stage, if it is necessary for just and proper ::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 9 decision of the case. Paramount consideration of Court should be of doing just decision of the case. Bare perusal of the aforesaid provision suggests that the Court enjoys the .
vast powers of summoning, recalling any witness at any stage of proceedings, if his/her evidence appears to be essential for just decision of the case.
13. Hon'ble Apex Court in Mannan SK and others vs. State of West Bengal and another AIR 2014 SC 2950, has held as under:-
"10. The aim of every court is to discover truth.
Section 311 of the Code is one of many rsuch provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re- examine already examined witness. The second part of the Section uses the word 'shall'. It says that the court shall summon and examine or recall or re-
examine any such person if his evidence appears to it to be essential to the just decision of the case. The words 'essential to the just decision of the case' are the key words. The court must form an opinion that for the just decision of the case recall or re- examination of the witness is necessary. Since the power is wide it's exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether ::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 10 recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to .
fill-up a lacuna because the line of demarcation is thin. It is for the court to consider all the circumstances and decide whether the prayer for recall is genuine."
14. Hon'ble Apex Court in Raja Ram Prasad Yadav vs. State of Bihar and another, (2013)14 SCC 461, has held that powers under Section 311 Cr.P.C. to summon any person or witness or examine any person already examined can be exercised at any stage provided the same is required for just decision of the case. It may be profitable to take note of the following paras of the judgment:-
"14. A conspicuous reading of Section 311 Cr.P.C.
would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression "any" has been used as a pre-fix to "court", "inquiry", "trial", "other proceeding", "person as a witness", "person in attendance though not summoned as a witness", and "person already examined".
By using the said expression "any" as a pre-
fix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the Court. Order of re-examination is also prescribed calling for such a witness so desired for such re- examination. Therefore, a reading of Section 311 Cr.P.C. and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, ::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 11 will have to necessarily be in consonance with the prescription contained in Section 311 Cr.P.C. It is, therefore, imperative that the invocation of Section 311 Cr.P.C. and its application in a particular case can be .
ordered by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined, the Court must necessarily consider and ensure that such recall and re-examination of any rperson, appears in the view of the Court to be essential for the just decision of the case.
Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re- examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.
16. Again in an unreported decision rendered by this Court dated 08.05.2013 in Natasha Singh vs. CBI (State) - Criminal Appeal No.709 of 2013, where one of us was a party, various other decisions of this Court were referred to and the position has been stated as under in paragraphs 15 and 16:
"15. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to ::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 12 cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further the additional evidence must not be received as a disguise for retrial, or to change the .
nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal, however, must be given to the other party.
The power conferred under Section 311 Cr.P.C. must, therefore, be invoked by the Court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection.
The very use of words such as 'any Court', 'at any stage', or 'or any enquiry', trial or other proceedings', 'any person' and 'any such person' clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should, therefore, be whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.
16. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person's right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. (Vide Talab Haji Hussain v. Madhukar Purshottam Mondkar & Anr., AIR 1958 SC 376; Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors. AIR 2004 SC 3114; Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., AIR 2006 SC 1367;::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 13
Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) (2007) 2 SCC 258; Vijay Kumar v. State of U.P. & Anr., (2011) 8 SCC 136; and Sudevanand v. State through C.B.I. (2012) 3 SCC 387.)"
.
17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:
a) Whether the Court is right in thinking that the new evidence is needed by it?
Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?
b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the r judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated.
c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.
d) The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
f) The wide discretionary power should be exercised judiciously and not arbitrarily.
::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 14g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.
.
h) The object of Section 311 Cr.P.C.
simultaneously imposes a duty on the Court to determine the truth and to render a just decision.
i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. r The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.
k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
m) The power must be exercised keeping in mind that the evidence that is ::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 15 likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
.
n) The power under Section 311 Cr.P.C.
must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right."
15. r Hon'ble Apex Court in Zahira Habibullah Sheikh (5) and another vs. State of Gujarat and others (2006)3 SCC 374 has held as under:-
"27. The object underlying Section 311 of the Code 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 statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning ::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 16 witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.
.
28. As indicated above, the Section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court. Sections 60, 64 and 91 of the Indian Evidence Act, 1872 (in short, 'Evidence Act') are based on this rule.
The Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in rweighing the evidence, the Court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The Court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence.
In such cases, the Court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the Court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge.
29. The object of the Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by Court gives evidence against the complainant he should be allowed an opportunity to cross- examine. The right to cross-examine a witness who is called by a Court arises not under the provision of Section 311, but under the Evidence Act which gives a party the right to cross- examine a witness who is not his own witness. Since a witness summoned by the Court could not be termed a witness of any particular party, the Court ::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 17 should give the right of cross- examination to the complainant. These aspects were highlighted in Jamat Raj Kewalji Govani v. State of Maharashtra, (AIR 1968 SC 178).
.
30. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operative principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who rcommit offences.
31. In 1846, in a judgment which Lord Chancellor Selborne would later describe as "one of the ablest judgments of one of the ablest judges who ever sat in this court,"
Vice-Chancellor Knight Bruce said :
"The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however, valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them.
The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination. Truth, like all other good things, may be loved unwisely may be pursued too keenly - may cost too much."
The Vice-Chancellor went on to refer to paying "too great a price .... for truth". This is a formulation which has subsequently been frequently invoked, including by Sir Gerard Brennan. On another occasion, in a joint judgment of the High Court, a more expansive formulation of the proposition was advanced in the following terms: "The evidence has been obtained at a price which is unacceptable having regard to the prevailing community standards."
::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 1832. Restraints on the processes for determining the truth are multi-faceted. They have emerged in numerous different ways, at different times and affect different areas of the conduct of legal proceedings. By the .
traditional common law method of induction there has emerged in our jurisprudence the principle of a fair trial. Oliver Wendell Holmes described the process:
"It is the merit of the common law that it decides the case first and determines the principles afterwards ..... It is only after a series of determination on the same subject- matter, that it becomes necessary to "reconcile the cases", as it is called, that is, by a true induction to state the principle which has until then been obscurely felt. And this statement is often modified more than once by new decisions before the abstracted general rule takes its final r shape. A well settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest is to resist it at every step."
33. The principle of fair trial now informs and energizes many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapted to new and changing circumstances, and exigencies of the situation - peculiar at times and related to the nature of crime, persons involved - directly or operating behind, social impart and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system.
34. As will presently appear, the principle of a fair trial manifests itself in virtually every aspect of our practice and procedure, including the law of evidence. There is, however, an overriding and, perhaps, unifying principle. As Deane, J. put it:
"It is desirable that the requirement of fairness be separately identified since it transcends the context of more particularized legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law."::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 19
35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and .
duties, which affect the whole community as a community and is harmful to society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. The Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not rconfined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.
36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual ::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 20 situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will .
not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced rto give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.
37. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings;
the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny.
38. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing ::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 21 requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty stage-managed, tailored and partisan trial.
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39. The fair trial for a criminal offence consists not only in technical observance of the frame, and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice."
16. After having gone through the provisions of law as contained in Section 311 Cr.P.C. as well as law referred above, there cannot be any dispute that the Court has vast power to summon a witness or recall or re-examine any witness at any stage of trial, provided the same is necessary for the just and proper decision of the case. But, Hon'ble Apex Court, in judgments referred above, has categorically observed that the words 'essential to the just decision of the case' are the key words and in this regard, the court must form an opinion that for the just decision of the case, whether it is necessary to recall or re-examine the witness or not.
17. Similarly, Hon'ble Apex Court has further held that power is wide and as such its exercise has to be with circumspection. Otherwise, also it is well settled that wider the power greater is the responsibility on the courts which exercise it and exercise of such power cannot be untrammeled and arbitrary, rather same must be only guided by the object of arriving at a just decision of the case.
::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 2218. In the instant case, as clearly emerged from the record, notice dated 10.5.2016, which is/was sought to be placed on record by the accused was received by the accused .
after the closure of evidence. Though there is no mention of date of notice in the application filed under Section 311 Cr.P.C.
by the accused, but the date as mentioned on the notice, copy of which is/was annexed with the application, clearly suggests that the same was issued by the Income Tax Department on 10.5.2016. Since application has been filed on 30.6.2016, it cannot be said that the same has been filed at a belated stage just to prolong the proceedings. Accused has specifically stated in the application that he wants to examine AO, ITC, Mandi as a witness as he has sent a legal notice to the accused regarding the repayment of loan amounting to Rs.9,75,000/-. Accused has further stated in the application that AO, ITC, Mandi, is required to be examined as a witness because the complainant has submitted before the Commissioner of Income Tax that he has received the aforesaid amount from the accused. This Court, after having carefully perused the legal notice sent by AO, ITC, Mandi finds that there is no specific mention with regard to repayment of loan amounting to Rs.9,75,000/- qua which he allegedly issued cheques, which are the subject matter of the complaint made before the learned trial Court.
::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 2319. As has been observed above by the Hon'ble Apex Court that words "essential to the just decision of the case" are the key words and in this regard Court below, while .
considering the application made under Section 311 Cr.P.C., was required to form an opinion, whether it is/was necessary to examine the witness or not in support of averments contained in the application or document proposed to be adduced on record. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case.
20. In the instant case, as has been discussed above, definitely with the receipt of legal notice from the AO, ITC, Mandi, as stands mentioned above, the accused got an opportunity to prove that he has already paid Rs.9,75,000/- in the year 2011-2012 and as such it was incumbent upon Court below to consider the request of the accused to arrive at just decision. This Court certainly cannot loose sight of dictum of Hon'ble Apex Court in the aforesaid judgments that exercise of powers under Section 311 Cr.P.C. cannot be un-trammeled and arbitrary, rather same must be guided by the object of arriving at just decision of the case.
21. In the case at hand, there appears to be no attempt on the part of learned trial Court to form an opinion that whether examination of witness proposed to be examined ::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 24 is essential for just decision of the case or not. Rather learned trial Court, taking note of the fact that accused has failed to mention as to on which date alleged notice of AO, ITC, Mandi, .
was received by hij, proceeded to dismiss the application having been filed under Section 311 Cr.P.C. Without making any comment/observation with regard to statement of accused recorded under Section 313 Cr.P.C., wherein accused, while admitting that cheques pertain to his account, stated that he gave cheques as security, this Court wish to observe that same could not be ground for Court below to deny opportunity to the accused to prove legal notice allegedly issued by Income Tax Authorities by examining Officer of the Income Tax Department. Otherwise also though perusal of statement recorded under Section 313 Cr.P.C. reveals that accused while denying the claim of the complainant has specifically stated that he had only issued cheques as security, but if statement of accused recorded under Section 313 Cr.P.C. is read in its entirety, it clearly suggests that accused denied the liability, if any, on his part towards the complainant.
22. Hon'ble Apex Court in Raja Ram Prasad Yadav vs. State of Bihar and another, (2013)14 SCC 461, taking note of various judgments passed by Hon'ble Apex Court, has culled out certain principles which are required to be taken into account by the Courts, while considering the application under Section 311 Cr.P.C. In the aforesaid judgment, Hon'ble ::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 25 Apex Court has categorically held that the exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, .
inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated and in case evidence of any witness appears to the Court to be essential for the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person. Most importantly, Hon'ble Apex Court has held that the exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case. Hon'ble Apex Court has very candidly held in aforesaid judgment that exercise of such powers cannot be dubbed as "filling in a lacuna in the prosecution case" unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused resulting in miscarriage of justice. On the top of everything, Court needs to satisfy itself that it was no doubt essential to examine witness in order to arrive at just decision of the case.
23. This Court, after having been taken note of the aforesaid principle laid down by Hon'ble Apex Court in Raja Ram's case supra, has no hesitation to conclude that the impugned order dated 17.12.2016, having been passed by ::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 26 learned trial Court, is not sustainable in the eyes of law, whereby the accused has been prevented from placing on record notice served by Income Tax Department as well as .
from examining the officer of the Income Tax Department, which otherwise would have helped the Court below to arrive at just and fair decision. Otherwise also, this Court sees that no prejudice would be caused to the complainant who otherwise shall be eligible to rebut the evidence to be led by the accused. Hon'ble Apex Court in judgment referred above has further held that powers must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. In the instant case, as has been discussed hereinabove, notice sought to be proved on record by examining AO, ITC, Mandi, would be material for proper adjudication of the case.
24. Hon'ble Apex Court in Mannan SK's case supra has observed that words "essential to the just decision of the case" are the key words and in this regard Court, keeping in view of all circumstances, needs to form an opinion, whether for the just decision of the case recall or re-examination is necessary or not. But, in the instant case, as has been discussed above, there is no attempt, if any, on the part of the Court below to form an opinion while arriving at a conclusion whether document sought to be proved on record by examining ::: Downloaded on - 25/07/2017 23:57:59 :::HCHP 27 the officer of Income Tax Department is/was essential to the just decision of the case or not.
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25. Consequently, in view of the discussion made hereinabove as well as law laid down by Hon'ble Apex Court, this Court is of the view that impugned order passed by Court below is not sustainable in the eye of law and as such same is quashed and set aside. Learned Court below is directed to take legal notice, as referred above, on record and thereafter allow the petitioner-accused to examine AO, ITC, Mandi as a witness to prove the same. Needless to say that the respondent-complainant shall be afforded opportunity of rebuttal as far as aforesaid document/witness is concerned.
26. Learned counsel representing the parties undertake to appear before the Court below on 17th August, 2017. Record of Court below be sent back forthwith to enable it to do the needful within stipulated time.
27. Interim order, if any, is vacated. All the miscellaneous applications are disposed of.
July 24, 2017 (Sandeep Sharma)
(aks) Judge.
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