Himachal Pradesh High Court
Irshad vs State Of Himachal Pradesh on 7 March, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CrMMO No. 56 of 2018
Decided on: March 7, 2018
__________________________________________________________________
.
Irshad .........Petitioner
Versus
State of Himachal Pradesh ...Respondent
__________________________________________________________________
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge
Whether approved for reporting?1yes.
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For the petitioner: Mr. Nimish Gupta, Advocate.
For the respondent: Mr. Vikrant Chandel, Deputy Advocate
General.
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Sandeep Sharma, J. (Oral)
Being aggrieved and dissatisfied with order dated 17.1.2018 passed by learned Special Judge, Chamba, District Chamba, Himachal Pradesh, in Cr.MA No. 97/18 in Sessions Trial No. 8/17, whereby application having been filed by the respondent-
State under Section 311 CrPC for re-summoning and re-
examination of PW-1 Sanjay Kumar and PW-2 Hoshiar Singh came to be allowed, petitioner-accused (hereinafter referred to as 'petitioner') has approached this Court by way of instant petition praying therein for quashing of impugned order referred to herein above.
Whether reporters of the Local papers are allowed to see the judgment? .
::: Downloaded on - 09/03/2018 22:58:25 :::HCHP -2-2. For having a bird's eye view of the matter, necessary facts as emerge from the record are that an application bearing Cr.MA No. 97/18 came to be filed under Section 311 CrPC on behalf of the .
State seeking therein permission of the court to re-summon and re-
examine PW-1 and PW-2, names whereof have been referred herein above. Averments contained in the application i.e. annexure P-1 reveal that at the time of investigation, Investigating Officer had initiated process for pre-trial disposal of case property in terms of provisions contained under Section 52A of the Narcotic Drugs & Psychotropic Substances Act (hereinafter, 'Act'), but before said process could be completed, charge sheet came to be filed against the accused within stipulated period. Since process initiated for pre-trial disposal of case property was pending, necessary disposal certificate could not be issued by competent authority and case property was also not destroyed.
3. On 27.5.2017, PW-1 Sanjay Kumar and PW-2 Hoshiar Singh were examined but on account of pending process of pre-trial disposal and also on account of bona fide belief that proceedings under Section 52A of the Act had been completed and further on account of non-availability of case property on that day, same could not be put to witnesses named above for identification.
Factum with regard to aforesaid omission on the part of the prosecution came to the fore at the time of recording of examination of PW-6, whereafter, application for re-examination of ::: Downloaded on - 09/03/2018 22:58:25 :::HCHP -3- PW-1 and PW-2 for limited purpose of identification of case property came to be instituted on behalf of the State.
4. Petitioner, while opposing aforesaid application disputed the .
averments contained in the same and stated before the Court that application has been moved solely with a view to fill up lacuna/omission on the part of prosecution in getting the case property identified from PW-1 and PW-2, who happened to be members of patrolling party, which had allegedly seized contraband from the conscious possession of the petitioner.
5. Learned trial Court taking note of aforesaid pleadings proceeded to allow the application filed under Section 311 CrPC vide order dated 17.1.2018 and allowed the re-examination of witnesses namely PW-1 Constable Sanjay Kumar and PW-2 Constable Hoshiar Singh. In the aforesaid background, petitioner has approached this Court, laying therein challenge to order dated 17.1.2018.
6. Mr. Nimish Gupta, learned counsel representing the petitioner, while inviting attention of this Court to the provisions contained in Section 311 CrPC, made a serious attempt to persuade this Court to agree with his contention that impugned order passed by learned Court below is not sustainable as the same is not in conformity with the provisions of law. While fairly conceding that in terms of Section 311 CrPC, court enjoys vast power to summon, re-examine or recall a witness at any stage of ::: Downloaded on - 09/03/2018 22:58:25 :::HCHP -4- proceedings, learned counsel representing the petitioner contended that such power can not be exercised by a court to permit applicant to fill up lacuna in the prosecution case. Mr. Gupta further .
contended that the explanation rendered in the application for re-
examination of PW-1 and PW-2 is not plausible because factum with regard to existence of case property was very much in the knowledge of prosecution and as such failure on its part to get the case property identified from PW-1 and PW-2 during their examination has definitely weakened the case of prosecution to the benefit of petitioner and as such, aforesaid omission which is/was not bona fide could not be allowed to be corrected/rectified by the learned Court below by ordering re-examination of aforesaid prosecution witnesses.
7. Mr. Vikrant Chandel, learned Deputy Advocate General, while refuting aforesaid contentions put forth by the learned counsel representing the petitioner, contended that provisions contained in Section 311 CrPC empower a Court to summon/recall a witness at any stage of proceedings, provided same is necessary for the proper adjudication of the case. While terming impugned order to be legal and in accordance with law, learned Deputy Advocate General contended that re-examination of PW-1 and PW-2, in whose presence, contraband was allegedly recovered from the conscious possession of the petitioner would facilitate proper adjudication of the case and no prejudice would be caused to the ::: Downloaded on - 09/03/2018 22:58:25 :::HCHP -5- petitioner/accused, who will definitely be provided proper/adequate opportunity of cross-examination. Lastly, Mr. Vikrant Chandel, learned Deputy Advocate General contended that while exercising .
powers under Section 311 CrPC, paramount consideration of court is to do justice to the case and court can examine a witness at any stage, even if same results in filling up lacuna or loopholes. In that situation, it is a subsidiary factor. In this regard, he placed reliance upon judgment rendered by this Court in CrMMO No. 209 of 2017, Sardar Singh vs. State of Himachal Pradesh decided on 1.8.2017.
8. I have heard the learned counsel for the parties and gone through the record carefully.
9. Before adverting to the factual matrix of the case as well as arguments advanced by the learned counsel representing the parties, this Court deems it proper to refer to the judgment passed by this Court in CrMMO No. 209 of 2017, wherein scope and power of the Court while exercising power under Section 311 CrPC has been elaborately dealt with. Relevant paragraphs of the aforesaid judgment are reproduced herein below:
"10. Before ascertaining the merits of the submissions having been made by learned counsel representing the respective parties vis-à-vis impugned order passed by the learned trial Court, it would be profitable to take note of Section 311 Cr.P.C., which reads 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 ::: Downloaded on - 09/03/2018 22:58:25 :::HCHP -6- 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"
Bare perusal of aforesaid provision 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, and judgments passed by Hon'ble Apex Court in Mannan SK and others vs. State of West Bengal and another AIR 2014 SC 2950, wherein the Hon'ble Court has held as under:-
"10. The aim of every court is to discover truth. Section 311 of the Code is one of many such 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 reexamination 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 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."
11. 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 ::: Downloaded on - 09/03/2018 22:58:25 :::HCHP -7- 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, 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 person, 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 ::: Downloaded on - 09/03/2018 22:58:25 :::HCHP -8- power should be made judicially and also with extreme care and caution.
15. In this context, we also wish to make a reference to certain decisions rendered by this Court on the interpretation of Section 311 .
Cr.P.C. where, this Court highlighted as to the basic principles which are to be borne in mind, while dealing with an application under Section 311 Cr.P.C.
15.1 In the decision reported in Jamatraj Kewalji Govani vs. State of Maharashtra - AIR 1968 SC 178, this 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) 15.2 In the decision reported in Mohanlal Shamji Soni vs. Union of India and another - 1991 Suppl.(1) SCC 271, this Court again highlighted the importance of the power to be exercised under Section 311 Cr.P.C. as under in paragraph 10:-
"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) 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 ::: Downloaded on - 09/03/2018 22:58:25 :::HCHP -9- summoned as a witness or recall and reexamine 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."
15.3 In the decision in Raj Deo Sharma (II) vs. State of Bihar - 1999 (7) SCC 604, the proposition has been reiterated as under in paragraph 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) 15.4 In U.T. of Dadra and Nagar Haveli and Anr. vs. Fatehsinh Mohansinh Chauhan - 2006 (7) SCC 529, the decision has been further elucidated as under in paragraph 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 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 supplied) ::: Downloaded on - 09/03/2018 22:58:25 :::HCHP
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15.5 In Iddar & Ors. vs. Aabida & Anr. - AIR 2007 SC 3029, the object underlying under Section 311 Cr.P.C., has been stated as under in paragraph 9:-
"9...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 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) 15.6 In P. Sanjeeva Rao vs. State of A.P.- AIR 2012 SC 2242, the scope of Section 311 Cr.P.C. has been highlighted by making reference to an earlier decision of this Court and also with particular reference to the case, which was dealt with in that decision in paragraphs 20 and 23, which are as under:-
"20. 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:
"6. ...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 ::: Downloaded on - 09/03/2018 22:58:25 :::HCHP
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trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible."
23. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined-in-chief about .
an incident that is nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself." (Emphasis in original) 15.7 In a recent decision of this Court in Sheikh Jumman vs. State of Maharashtra - (2012) 9 SCALE 18, the above referred to decisions were followed.
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 ::: Downloaded on - 09/03/2018 22:58:25 :::HCHP
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accused, or to 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 ::: Downloaded on - 09/03/2018 22:58:25 :::HCHP
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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; 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 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 reexamine 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.
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g) 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. 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 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 ::: Downloaded on - 09/03/2018 22:58:25 :::HCHP
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the persons concerned, must be ensured being a constitutional goal, as well as a human right."
12. 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 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 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 ::: Downloaded on - 09/03/2018 22:58:25 :::HCHP
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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 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 commit offences.
13. In the judgments referred above, the Hon'ble Apex Court has specifically observed that the words "essential to the just decision of the case" are 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 examine the witness or not."
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10. It is quite apparent from the aforesaid exposition of law rendered by this Court, which is squarely based upon the judgment passed by Hon'ble Apex Court, that court enjoys vast power of .
summoning or recalling any witness at any stage of proceedings, if his/her evidence appears to be essential for just decision of the case. No doubt, it has been cautioned by Hon'ble Apex Court repeatedly that the Courts below should be more careful and cautious while exercising power under Section 311 CrPC but it can always summon, recall or reexamine any witness at any stage, provided his/her statement is necessary for proper adjudication of the case. It is well settled that wider the power, greater the responsibility upon the Court which exercises such power and exercise of such power can not be untrammeled and arbitrary rather, same must be guided by the object of arriving at a just decision of case.
11. In the case at hand, stand has been taken by the learned counsel representing the petitioner that re-examination of PW-1 and PW-2 would amount to filling up of lacuna, but this Court, after having carefully perused averments contained in the application, which have not been seriously disputed by the accused, is not inclined to agree with the aforesaid contention of the learned counsel representing the petitioner. Hon'ble Apex Court in the judgment relied upon by this Court in the judgment of this court (supra), has categorically held that whether recall of a ::: Downloaded on - 09/03/2018 22:58:25 :::HCHP
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witness is for filling up a lacuna or for its just decision, depends upon the given circumstances of each case. Undisputedly, in the case at hand, factum with regard to existence of case property .
came to the notice of the prosecution during examination of PW-6 ASI Surinder Kumar, immediately whereafter, application under Section 311 CrPC came to be moved at the behest of prosecution.
Prosecution sought re-examination of PW-1 Constable Sanjay Kumar and PW-2 Constable Hoshiar Singh for the limited purpose of getting the case property identified since both the above named witnesses were members of patrolling party, in whose presence, alleged contraband was recovered from the exclusive and conscious possession of the petitioner.
12. There appears to be plausible explanation rendered in the application by the prosecution qua the failure on its part to get the contraband identified at the time of examination of aforesaid witnesses. Explanation rendered on record by the prosecution, as has been taken note above, has been further corroborated with the version put forth by PW-10 ASI Ajit Singh. True it is that the case property was not shown to PW-1 and PW-2 during their examination before the Court, but taking note of the fact that the case property allegedly was recovered from the conscious possession of the petitioner in the presence of aforesaid witnesses, prayer for re-examination of these witnesses that too for limited purpose of identifying the case property, appears to be justified.
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13. Hon'ble Apex Court in Rajendra Prasad vs Narcotic Cell, (1999) 6 SCC 110, which has also been taken note by learned Court below, has categorically held that a lacuna in prosecution is .
not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. Corollary of such lapses or mistakes during conducting the case can not be understood to be lacuna, which a court can not fill up. In the judgment referred herein above, it has been further held by Hon'ble Apex Court that lacuna in prosecution must be understood as 'inherent weakness' or 'latent wedge' in the matrix of the prosecution. It has been further categorically held that if proper evidence was not adduced or relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.
14. In the case at hand, as has been rightly taken note of by learned Court below, names of witnesses were already known to both the parties and they were fully aware of the fact that evidence could not led to prove that case property was recovered from exclusive and conscious possession of petitioner in their presence ::: Downloaded on - 09/03/2018 22:58:25 :::HCHP
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as such, prayer made by prosecution for re-examination of PW-1 and PW-2 can not be said to be unreasonable.
15. Leaving everything aside, bare perusal of Section 311 CrPC .
suggests that Section 311 CrPC has two parts; first part reserves a right to the parties to move an appropriate application for recalling and re-examination of the witnesses at any stage but, definitely the second part is mandatory that casts a duty upon the Court to summon, re-examine or recall a witness at any stage, if his/her evidence appears to be essential for just decision of the case, because underlying object of Section 311 CrPC is to ensure that there is no failure of justice on account of mistake of either of the parties in bringing valuable piece of evidence on record or leaving ambiguity in the statements of witnesses examined from either of the sides.
16. Another argument advanced by the learned counsel representing the petitioner with regard to delay in moving the application also deserves outright rejection because application at hand came to be filed immediately after factum with regard to non-
disposal of case property came to the notice of prosecution during examination of ASI Surinder Kumar, PW-6. Otherwise also, aforesaid argument can not be accepted in the teeth of wide powers conferred upon the courts under Section 311 CrPC, to summon a witness at any stage of inquiry, trial or other proceedings under CrPC. Moreover, in the case at hand, evidence of prosecution is not ::: Downloaded on - 09/03/2018 22:58:25 :::HCHP
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yet closed as emerges from the impugned order, rather, remaining witnesses have been ordered to be examined by the learned Court below alongwith PW-1 and PW-2, on the date fixed by it.
.
17. In the aforesaid background, this Court finds no reason to interfere with the well reasoned order recorded by the learned Court below, which otherwise appears to be in conformity with the provisions contained under Section 311 CrPC as well as law laid down by the Hon'ble Apex Court followed by this Hon'ble Court from time to time, and as such, same deserves to be upheld.
18. Consequently, in view of the detailed discussion above, present petition is dismissed. Impugned order passed by learned Court below is upheld. Pending applications, if any, are disposed of.
(Sandeep Sharma) Judge March 7, 2018 (Vikrant) ::: Downloaded on - 09/03/2018 22:58:25 :::HCHP