Gujarat High Court
Ishwarbhai Ramjibhai Parmar vs State Of Gujarat on 18 April, 2024
NEUTRAL CITATION
R/SCR.A/7369/2015 JUDGMENT DATED: 18/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7369 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ISHWARBHAI RAMJIBHAI PARMAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR KASHYAP R JOSHI(2133) for the Applicant(s) No. 1
MR PRATIK B BAROT(3711) for the Respondent(s) No. 2
MR. L.B. DABHI, LD. ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 18/04/2024
ORAL JUDGMENT
1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent No.1-State and learned advocate Mr. Piyush Trivedi for learned advocate Mr. Pratik Barot waives service of notice of rule for and on behalf of the respondent No.2-original complainant.
2. By this writ application under Article 226/227 of the Constitution of India, the writ applicant has prayed for the Page 1 of 23 Downloaded on : Fri Apr 26 21:11:34 IST 2024 NEUTRAL CITATION R/SCR.A/7369/2015 JUDGMENT DATED: 18/04/2024 undefined following reliefs:
"(A) Your Lordship be pleased to admit and allow this petition and order passed by the learned 2 nd Additional Chief Judicial Magistrate, Mahesana dated 13.04.2015 rejecting the application below exhibit-
43 in Criminal Case No.1198 of 2011 and order passed in Revision Application No.37 of 2015 dated 30.10.2015 passed by the Additional Sessions Judge, Mahesana, be quashed and set aside.
(B) Your Lordship be pleased to allow the application below exhibit-43 and the complainant may be recalled for the cross-examination in Criminal Case No.1198 of 2011 at the earliest before the learned Additional CJM, Mahesana.
(C ) Your Lordship be pleased to stay the impugned orders and also the further proceedings of Criminal Case No.1198 of 2011 during the pendency of this petition and then till the final disposal of this petition.
(D ) Your Lordship be pleased to grant any other or further relief in the interest of justice and equity considering the facts and circumstances of the case."
3. The facts, giving rise to the present application, may be summarized as under;
3.1 The writ applicant herein is the original accused and the respondent No.2 herein is the original complainant in the main proceedings. Therefore, for the sake of convenience, they shall hereinafter be referred to as per their litigative status before the trial court.
3.2 The original complainant filed a complaint under Section 138 of the Negotiable Instruments Act (henceforth 'N.I. Act') against the original accused levelling allegations that as the Page 2 of 23 Downloaded on : Fri Apr 26 21:11:34 IST 2024 NEUTRAL CITATION R/SCR.A/7369/2015 JUDGMENT DATED: 18/04/2024 undefined original accused was working in the G.E.B., he often used to come to the office of the original complainant where he was doing the business of share market and thus they both came into contact and became friends.
3.3 Thereafter, under the guise of such friendship, the original accuse borrowed an amount of Rs.2,65,000/- from the original complainant with a promise to return back the said amount at the earliest.
3.4 Thereafter, as the original complainant was in need of money, he demanded the said borrowed amount from the original accused whereupon the original accused issued a cheque of Rs.2,65,000/- of the State Bank of India, Bharuch Branch, dated 11.01.2011 being Cheque No.483992 in favour of the original complainant duly signed by him against the amount owed by him to the original complainant.
3.5 Thereafter, the original complainant negotiated the cheque in question through its banker Axis Bank, Mahesana Branch on 11.01.2011 which was dishonoured with an endorsement of 'Funds Insufficient'.
3.6 The original complainant, thereafter, asked the original accused to repay his outstanding dues, however, the original complainant did not pay any heed to the same and till today, the said amount has not been returned back by the original accused.
3.7 The original complainant, thereafter, issued a statutory notice under Section 138 of the N.I. Act dated 25.01.2011 calling upon the original accused to make good the amount Page 3 of 23 Downloaded on : Fri Apr 26 21:11:34 IST 2024 NEUTRAL CITATION R/SCR.A/7369/2015 JUDGMENT DATED: 18/04/2024 undefined mentioned in the cheque. The said notice was sent by two different modes, i.e, R.P.A.D and U.P.C., however, notice issued through R.P.A.D remained unserved whereas the notice issued through U.P.C. was duly served. Despite the same, neither any reply has been filed by the original accused nor the outstanding dues of the original complainant has been paid by the original accused even after the completion of the notice period of 15 days. The original complainant, thereafter, proceeded to file a complaint in the Court of the learned Chief Judicial Magistrate at Mahesana which was ultimately registered as Criminal Case No.1198 of 2011.
3.8. Thereafter, the entire evidence of the original complainant was recorded on 07.03.2013 and the matter was pending for further statement of the original accused under Section 313 of the Cr.P.C. However, during that period, the original accused submitted an application vide Exh.43 under Section 311 of the Cr.P.C. for recalling and/or re-examining the original complainant which came to be rejected by the learned Magistrate vide order dated 13.04.2015.
3.9 Being aggrieved, the original accused preferred a revision application before the Sessions Court at Mahesana by filing a revision application being Criminal Revision Application No.37 of 2015, which was dismissed by the learned Addl. Sessions Judge, Mehsana vide order dated 30.10.2015 upholding the order passed by the learned Magistrate.
3.10 Hence, the original accused is here before this Court with the present writ application.
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4. Learned advocate Mr. Kashyap Joshi appearing for the applicant-original accused submits that the orders passed by both the courts below are ex facie, illegal, improper and unsustainable in law and liable to be quashed and set aside. He further submits that upon issuance of process, applicant- accused appeared and pleaded not guilty. Thereafter, after recording the entire evidence of the original complainant, a closing pursis was submitted. He further submits that, thereafter, at the stage of recording of further statement of the accused, the original accused preferred an application under Section 91 of the Cr.P.C. seeking a direction to the complainant to produce certain documents regarding business activities being carried out by him in the name and style as Varahi Securities at Aditya Complex, Bharuch as the original accused raised a very genuine defense that no such business was ever being carried out by the original complainant. Learned advocate Mr. Joshi also submits that the said application came to be allowed by the learned Magistrate vide order dated 20.07.2013 passed below Exh.34 whereby the original complainant was directed to produce all the documents as sought for in the Exh.34 application, which was not challenged by the complainant and had attained finality. Thereafter, after a period of two months, instead of producing such documents, the original complainant filed an affidavit stating that the partnership firm, namely, Varahi Securities has already been dissolved and all the documents pertaining to the same have been destroyed by the other partners, and as such, he does not have any such documents in his possession and, therefore, Page 5 of 23 Downloaded on : Fri Apr 26 21:11:34 IST 2024 NEUTRAL CITATION R/SCR.A/7369/2015 JUDGMENT DATED: 18/04/2024 undefined could not be able to produce on record. Learned advocate Mr. Joshi submits that the said fact was brought to the notice of the Court for the first time by filing the said affidavit which was neither stated in the complaint nor at the time of examination- in-chief of the original complainant. Therefore, the original accused filed an application at Exh.43 under Section 311 of the Cr.P.C. for recalling the original complainant for cross- examination with regard to the additional details divulged by him at a very later stage of the trial. The said application came to be rejected by the learned Magistrate vide the impugned order dated 13.04.2015 passed below Exh.43 on the ground that sufficient opportunity to cross-examine the original complainant had already been given to the original accused and thereby committed a grave error in appreciating the fact that some vital aspect had subsequently been disclosed by the original complainant by way of an affidavit and, therefore, in order to make his defense good, the applicant-original accused wanted to re-examined the original complainant on that aspect only. It has been further opined by the learned Magistrarte that the Exh.43 application was made by the original accused to prolong the trial as also to fill up the lacuna, which is also not just and proper finding.
5. Learned advocate Mr. Joshi has submitted that the applicant-original accused challenged the said order by filing a revision application before the Court of Sessions, which also came to be dismissed by the learned Addl. Sessions Judge vide impugned order dated 30.10.2015, prima facie, raising a question about the maintainability of the revision itself by Page 6 of 23 Downloaded on : Fri Apr 26 21:11:34 IST 2024 NEUTRAL CITATION R/SCR.A/7369/2015 JUDGMENT DATED: 18/04/2024 undefined observing that any order passed below the application filed during the pendency of the main proceedings, can be said to be an interlocutory order against which a revision is not maintainable. The said finding recorded by the court below do not merit acceptance and required to be interfered with as in catena of decisions, this Court as well as the Hon'ble Apex Court has held that an order under Section 311 of the Cr.P.C. is not an interlocutory order and revision is maintainable against such order. He also submits that the additional facts subsequently brought on record by the original complainant, which the applicant-original accused desires to be countered by cross-examining the original complainant are the important facts and may play a vital role in deciding the fate of the application and, therefore, depriving the original accused of his valuable right to cross-examine the witness would result in gross miscarriage of justice. To fortify his submissions, learned advocate Mr. Joshi relies upon the following decisions;
(i) A decision of this Court in the case of Sheikh Madinabibi Mustafabhai vs. State of Gujarat, Criminal Revision Application Nos.94 and 142 of 2004, decided on 12.10.2004;
(ii) The decision of the Hon'ble Supreme Court in the case of Varsha Garg vs. The State of Madhya Pradesh, reported in 2022 LiveLaw (SC) 662;
(iii) A decision of this Court in the case of Kiran Kantibhai Raval vs. State of Gujarat, reported in 2012 JX (Guj.) 1290;
(iv) Another decision of this Court in the case of Rajeshbhai Chandubhai & Ors. vs. State of Gujarat, Criminal Revision Page 7 of 23 Downloaded on : Fri Apr 26 21:11:34 IST 2024 NEUTRAL CITATION R/SCR.A/7369/2015 JUDGMENT DATED: 18/04/2024 undefined Application No.7 of 2001, decided on 7.2.2001;
6. In such circumstances, referred to above, learned advocate Mr. Joshi prays that there being merit in his application, the same be allowed and the impugned orders be quashed and set aside.
7. On the other hand, this application has been vehemently opposed by learned advocate Mr. Piyush Trivedi for learned advocate Mr. Pratik Barot appearing on behalf of the original complainant. He submits that the concurrent findings recorded by both the courts below are just, proper, reasonable and do not require any interference. Learned advocate Mr. Trivedi further submits that after the stage of recording of evidence of both the sides got over, the original accused changed his advocate in the trial proceedings, who then realized that there are some questions left out to be asked to the original complainant by the previous advocate and, therefore, decided to move an application under Section 311 of the Cr.P.C. for re- examination of the said witness, though a detailed and exhaustive cross-examination of the complainant had already been done by the original accused. Therefore, it seems that just with a view to fill up the lacuna, Section 311 application was preferred by the applicant-accused, which was rightly rejected by the learned Magistrate and then uphold by the learned Sessions Judge. Learned advocate Mr. Trivedi also submits that now the trial is at the stage of arguments of the parties and the applicant-accused can very well raise all his grievances during the course of arguments either orally or in writing and, therefore, there is no need to ask the complainant Page 8 of 23 Downloaded on : Fri Apr 26 21:11:34 IST 2024 NEUTRAL CITATION R/SCR.A/7369/2015 JUDGMENT DATED: 18/04/2024 undefined to again come to the witness box and answer the afterthought queries claimed to have been left out by the accused in his previous attempt. He further submits that the same is nothing but a clear cut attempt to fill up the lacuna, which should not be allowed.
8. In such circumstances, referred to above, learned advocate Mr. Trivedi prays that the present application being devoid of any merit, be rejected.
9. Having heard the learned counsel for the respective parties and having bestowed my serious consideration to the issue involved, I find force in the submission of the counsel for the appellant-original accused, as the same merits acceptance. In order to appreciate the stand of the appellant-original accused, I would first like to deal with the aspect of maintainability of the revision application under Section 397(2) of Cr.P.C. This Court, in Sheikh Madinabibi Mustafabhai (supra), while dealing with the aspect of maintainability of a revision against the order passed under Section 311 of the Cr.P.C., held in Para-14 as under;
"14. However, it is important for the purpose of the present judgment to note that this Court, while dealing with the case of Rajesh Chandubhai & Ors. v/s State of Gujarat, 2001(3) GLR 1979, has held that the order under Sec.311 of the Code is not an interlocutory order and revision is maintainable against the order rejecting the application of defence to recall the prosecution witnesses for cross-examination. The Court was dealing with Rev. Application filed by the original accused challenging the order passed by ld. Single Judge whereby the request to recall the prosecution witness examined earlier was rejected. It is important to note that sec.311 Page 9 of 23 Downloaded on : Fri Apr 26 21:11:34 IST 2024 NEUTRAL CITATION R/SCR.A/7369/2015 JUDGMENT DATED: 18/04/2024 undefined is an independent provision as some other provisions in Chapter 24 captioned " General Provisions as to Inquiry & Trial". However, the logic placed before the Court by the Court that the grievance can be made before the appellate Court after final conclusion of the trial by the aggrieved party and if the appellate Court finds that during the process the trial Court has committed a grave error and the same has resulted into prejudice to either party, the appellate Court can correct that error at that particular stage. Decision in the case of VC Shukla (supra) should be read in correct perspective and till date, the Apex Court has not categorically propounded that each interim order passed after initiation of the criminal proceedings and between the institution of prosecution and its final conclusion, should be termed as an interlocutory order. On the contrary, in en-number of decisions, the ratio propounded is that though every interlocutory order is an interim order, each interim order may not be the interlocutory order. If the dictionary meaning placed by the accused in reference to phrase "interlocutory order" is read, then any order passed below application making/expressing grievance in reference to Sec.316 or 319 of CrPC also can not be challenged by the party who is aggrieved by the order passed by the Presiding Judge conducting trial, because sec.316 provides that no influence to be used to induce disclosure. Sec.319 empowers the Court to proceed against other persons appearing to be guilty of the offence. Certain orders shall have to be passed by the trial Court during the proceedings because the ultimate goal of the trial Court is (i) to do justice, and (ii) to prevent injustice. Ratio of the decision in the case of VM Abdul Raheman and Others v/s D.K.Cassim & Sons and another, AIR 1933 PC 58 is found not relevant where the Privy Council has said about the "test of finality" while dealing with a case in reference to Sec.109(a) & O.41 R.23 of CPC (Old). On the contrary, the discussion as to concept of "final order" would help the present petitioner to some extent. Of course, High Court of Jammu & Kashmir in the decision in the case of S.K. Mahajan and etc. v/s Municipality, Jammu & others etc., 1982 CrLJ 646, has said that the order refusing to summon a witness under Sec.540 is an interlocutory order against Page 10 of 23 Downloaded on : Fri Apr 26 21:11:34 IST 2024 NEUTRAL CITATION R/SCR.A/7369/2015 JUDGMENT DATED: 18/04/2024 undefined which no revision would lie. But this Court as discussed earlier, has observed otherwise while dealing with similar objection that was raised in the case of Rajesh Chandulal (supra)."
10. In an another decision of this Court in the case of Rajeshbhai Chandubhai (supra), this Court again has very succinctly dealt with the aspect of nature of interlocutory order and held as under;
"11.4 Lastly, Mr.Thakore, learned advocate for the petitioners has relied upon the judgment in the case of State of Gujarat v. Gaurang Mathurbhai Leuva & Ors. reported in 1999(3) G.L.R. 2325. In para 4 the Court has observed as under:
"Whether the order in question can be said to be the interlocutory is the question passed before me for consideration. The expression "interlocutory order" is not defined in Criminal Procedure Code. In order to judge whether the particular order is interlocutory or otherwise, the Court has to making every endeavour, find out whether the order in question is interlocutory order. If it is found that the order passed is purely interim or temporary in nature which does not decide or touch the important rights and liabilities of the parties and give a final shape to a particular point at a particular stage during the course of the hearing the same can be termed interlocutory order. If the order substantially affects the rights and liabilities of the parties it would not be the interlocutory order. It may also be stated that intermediate or quasi-final order which determines a particular issue finally at any stage of the hearing will not fall within the ambits of "interlocutory order."
12. In my view, therefore denial of this right of cross- examination to the accused is not an order passed which is purely interim or temporary in nature. The learned Sessions Judge has decided the rights and liabilities of the accused finally and the order of the learned Sessions Judge touch the important rights and liabilities of the Page 11 of 23 Downloaded on : Fri Apr 26 21:11:34 IST 2024 NEUTRAL CITATION R/SCR.A/7369/2015 JUDGMENT DATED: 18/04/2024 undefined accused and give a final shape to the orders passed therein at this stage during the course of hearing, in my view, the order substantially affects the rights and liabilities of the accused and, therefore, it cannot be called as an interlocutory order. In my view, the expression "interlocutory order" is a contradiction to what is known as final order and denotes an order of an interim in nature. In my view, this order of denial to cross-examination cannot be termed as interim or temporary nature because it determines the rights of the accused finally at this stage which cannot be recalled in future. In my view, damage to the accused is final and complete and therefore this order can be termed as final order and cannot be termed as interlocutory order. Therefore the present revision application is maintainable."
11. Thus, the tenets of law as enunciated in the aforesaid decisions would indicate that any order passed below any application filed during the trial in the same proceedings but under altogether a separate and independent provision, cannot be said to be an interlocutory order against which a revision is not maintainable. It is further revealed that an intermediate or quasi-final order which determines a particular issue finally at any stage of the hearing will not fall within the ambits of interlocutory order.
12. Now let me deal with the aspect of powers vested with the Court under Section 311 of the Cr.P.C. In this context, I would first like to quote, with profit, a Two Judge Bench decision of the Hon'ble Apex Court in the case of Varsha Garg (supra), wherein the Hon'ble Supreme Court, held thus;
"28 Having clarified that the bar under Section 301 is inapplicable and that the appellant is well placed to pursue this appeal, we now examine Section 311 of CrPC.Page 12 of 23 Downloaded on : Fri Apr 26 21:11:34 IST 2024
NEUTRAL CITATION R/SCR.A/7369/2015 JUDGMENT DATED: 18/04/2024 undefined Section 311 provides that the Court "may".
(i) Summon any person as a witness or to examine any person in attendance, though not summoned as a witness; and
(ii) Recall and re-examine any person who has already been examined.
This power can be exercised at any stage of any inquiry, trial or other proceeding under the CrPC. The latter part of Section 311 states that the Court ―shall‖ summon and examine or recall and re-examine any such person if his evidence appears to the Court to be essential to the just decision of the case‖. Section 311 contains a power upon the Court in broad terms. The statutory provision must be read purposively, to achieve the intent of the statute to aid in the discovery of truth.
29 The first part of the statutory provision which uses the expression ―may postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding. The latter part of the provision mandates the recall of a witness by the Court as it uses the expression ―shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case‖. Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory."
13. At this stage, I deem it appropriate to refer to Section 311 of Cr.P.C., as well as Section 138 of the Evidence Act. The same are extracted hereunder:
Section 311 of Cr.P.C.
"Section 311:-Power to summon material witness, or examine person present:Page 13 of 23 Downloaded on : Fri Apr 26 21:11:34 IST 2024
NEUTRAL CITATION R/SCR.A/7369/2015 JUDGMENT DATED: 18/04/2024 undefined 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.
Section 138 of Evidence Act
138. Order of examinations- witnesses shall be first examined-in- chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
Direction of re-examination- The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter."
14. A bare reading of Section 311 Cr.P.C. reveals that broadest of the powers have been invested with the Courts when it comes to exercise discretion to summon a witness or to recall or re-examine any witness already examined. A reading of the aforesaid provision further shows that the expression "any" has been used as a prefix 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 prefix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied Page 14 of 23 Downloaded on : Fri Apr 26 21:11:34 IST 2024 NEUTRAL CITATION R/SCR.A/7369/2015 JUDGMENT DATED: 18/04/2024 undefined 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. Simultaneously, 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 combined reading of Section 311 Cr.P.C. and Section 138 Evidence Act, insofar as the criminal trial is concerned, the order of re- examination at the desire of any person under Section 138, 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. 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 person, in the opinion of the Court appears 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 Page 15 of 23 Downloaded on : Fri Apr 26 21:11:34 IST 2024 NEUTRAL CITATION R/SCR.A/7369/2015 JUDGMENT DATED: 18/04/2024 undefined of such power should be made judicially and also with extreme care and caution.
15. In the aforesaid context, I would like to refer to and rely upon certain decisions of the Hon'ble Apex Court on the interpretation of Section 311 Cr.P.C., whereby the Hon'ble Apex Court has pointed out certain basic principles to be borne in mind while dealing with an application under Section 311 Cr.P.C. In the case of Jamatraj Kewalji Govani vs. State of Maharashtra, reported in AIR 1968 SC 178, the Hon'ble Apex Court held as under in paragraph 14:-
"14. It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction." (Emphasis added)
16. In the case of Mohanlal Shamji Soni vs. Union of India & Anr., reported in 1991 Suppl. (1) SCC 271, the Supreme Court again highlighted the importance of the power to be exercised under Section 311 Cr.P.C. as under
"10....In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) Page 16 of 23 Downloaded on : Fri Apr 26 21:11:34 IST 2024 NEUTRAL CITATION R/SCR.A/7369/2015 JUDGMENT DATED: 18/04/2024 undefined are enacted whereunder any court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re- examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated."
17. In the case of Raj Deo Sharma vs. State of Bihar, reported in 1999 (7) SCC 604, the proposition has been reiterated as under in para-9;
"9. We may observe that the power of the court as envisaged in Section 311 of the Code of Criminal Procedure has not been curtailed by this Court. Neither in the decision of the five-Judge Bench in A.R. Antulay case nor in Kartar Singh case such power has been restricted for achieving speedy trial. In other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment it is still open to the prosecution to invoke the powers of the court under Section 311 of the Code. We make it clear that if evidence of any witness appears to the court to be essential to the just decision of the case it is the duty of the court to summon and examine or recall and re- examine any such person." (Emphasis added)
18. In U.T. of Dadra and Nagar Haveli and Anr. vs. Fatehsinh Mohansinh Chauhan, reported in 2006 (7) SCC 529, the decision has been further elucidated as under in para- 15;
"15. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining Page 17 of 23 Downloaded on : Fri Apr 26 21:11:34 IST 2024 NEUTRAL CITATION R/SCR.A/7369/2015 JUDGMENT DATED: 18/04/2024 undefined proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case 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." (Emphasis added)
19. In the case of Iddar & Ors. vs. Aabida & Anr., reported in AIR 2007 SC 3029, the object underlying under Section 311 Cr.P.C., has been stated as under in para-11;
"11. 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 witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind."(Emphasis added)
20. In P. Sanjeeva Rao vs. State of A.P., reported in AIR Page 18 of 23 Downloaded on : Fri Apr 26 21:11:34 IST 2024 NEUTRAL CITATION R/SCR.A/7369/2015 JUDGMENT DATED: 18/04/2024 undefined 2012 SC 2242, the scope and ambit of Section 311 Cr.P.C. has been emphasized by the Hon'ble Supreme Court by making reference of its earlier decision and held in paras- 13 and 16 as under;
"13. Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar (2000) 10 SCC 430. The following passage is in this regard apposite:
"In such circumstances, if the new counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible."
21. So far as the contention raised by the learned advocate for the original complainant as regards filling up of lacuna is concerned, I would like to again quote some of the relevant observations made by the Hon'ble Apex Court in the case of Varsha Grag (supra), which read thus;
"38 Having dealt with the satisfaction of the requirements of Section 311, we deal with the objection of the respondents that the application should not be allowed as it will lead to filling in the lacunae of the prosecution's case. However, even the said reason cannot be an absolute bar to allowing an application under Section 311.
39 In the decision in Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374, which was more recently reiterated in Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd., (2008) 11 SCC 108, the Court specifically dealt Page 19 of 23 Downloaded on : Fri Apr 26 21:11:34 IST 2024 NEUTRAL CITATION R/SCR.A/7369/2015 JUDGMENT DATED: 18/04/2024 undefined with this objection and observed that the resultant filling of loopholes on account of allowing an application under Section 311 is merely a subsidiary factor and the Court's determination of the application should only be based on the test of the essentiality of the evidence. It noted that:
28. 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 weighing 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."
22. Thus, what emerges from the aforesaid observations is that the ground of filling up lacuna or the loopholes raised at the time of objecting the application for recall of any witness cannot be taken into account by the Court while deciding such an application as the same is a subsidiary factor and the only relevant factor to be borne in mind while exercising such power is the essentiallity of the new evidence sought to be re- examined for just decision of the Court.
23. Examining the case on hand keeping the above principles in mind, at the very outset, I may state that the courts below, while passing the impugned orders have completely Page 20 of 23 Downloaded on : Fri Apr 26 21:11:34 IST 2024 NEUTRAL CITATION R/SCR.A/7369/2015 JUDGMENT DATED: 18/04/2024 undefined disregarded the principal objectives with which the provision under Section 311 Cr.P.C. has been brought into the statute book.
24. It appears from the materials on record that the complaint came to be filed in the year 2011. Thereafter, the evidences of both the sides were recorded. The original complainant was cross-examined on 07.03.2013 and the matter was at the stage of recording of further statement of original accused under Section 313. However, at that point of time, as the original accused felt that some important documents needed to be examined thoroughly to meet with the ends of justice, have not been produced by the original complainant, he made an application before the concerned Magistrate under Section 91 of the Cr.P.C., seeking direction to the original complainant to produce certain documents as mentioned in the application. The said application was partly allowed and the original complainant was directed to produce whichever documents he was having with him pertaining to the controversy involved on the next date of hearing. Pursuant to the aforesaid order passed below Exh.34 application, the original complainant filed reply dated 10.09.2013 stating on oath that he does not possess a single piece of document as sought for by the original accused because he has already been relieved as the partner from the partnership firm, namely, Varahi Security and the said firm has already been dissolved and all the documents pertaining to the same have been destroyed by the other partners. Thus, the original accused filed an application under Section 311 of the Cr.P.C.
Page 21 of 23 Downloaded on : Fri Apr 26 21:11:34 IST 2024NEUTRAL CITATION R/SCR.A/7369/2015 JUDGMENT DATED: 18/04/2024 undefined for re-examination of the complainant raising a grievance that the stand now taken by the original complainant in the affidavit has neither been mentioned in complainant nor has been disclosed by the complainant in his cross-examination. However, the said application was rejected by the Magistrate and such rejection was then confirmed by the Sessions Court. I find that the concurrent findings recorded by both the courts below while deciding the application filed by the original accused are not just and proper and the same require to be interfered with because, in my opinion, no litigant should be deprived of his statutory rights as enshrined under the statute itself if they seek to invoke any such jurisdiction in the hope of getting the chance of fair trial from the court of law, irrespective of the fact whether it is the accused or the complainant. Here in the case on hand, it is the grievance of the original accused that the original complainant has divulged certain significant facts after recording of his evidence and, therefore, the same could not be countered on his behalf, and as such, when the entire burden lies upon the original accused to prove his innocence and when he feels something important to be missed out in his defense, I am of the view that no litigan should go with sorrow heart from the court of law when it comes to the question of fair trial as the 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 Page 22 of 23 Downloaded on : Fri Apr 26 21:11:34 IST 2024 NEUTRAL CITATION R/SCR.A/7369/2015 JUDGMENT DATED: 18/04/2024 undefined well as a human right. Thus, under no circumstances can a person's right to fair trial be jeopardized. Seeking to re- examine any witness in support of the defense is a valuable right and denial of such right would amount to the denial of a fair trial. Thus, in my considered opinion, looking to the peculiar facts and circumstances of the present case, re- examination of the evidence of the original complainant is essential for the just decision of the case as also for the satisfaction of the accused of being tried fairly.
25. In the backdrop of the aforesaid discussion, applying the various principles set out above, I am convinced that the impugned orders passed by both the courts below require interference.
26. In the result, the present application succeeds and is hereby allowed. The impugned orders passed by learned 2 nd Additional Chief Judicial Magistrate, Mahesana dated 13.04.2015 below Exh.43 in Criminal Case No.1198 of 2011 and the order dated 30.10.2015 passed by the learned Additional Sessions Judge, Mahesana in Criminal Revision Application No.37 of 2015 are hereby quashed and set aside. The trial court shall recall the original complainant to be cross- examined/re-examined by the original accused on any specific date as may be deemed just and proper by it.
(DIVYESH A. JOSHI,J) VAHID Page 23 of 23 Downloaded on : Fri Apr 26 21:11:34 IST 2024