Himachal Pradesh High Court
Duni Chand vs Godawari on 12 July, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
.
Cr.MMO No. 349 of 2016
Decided on: 12.7.2017
Duni Chand. ...Petitioner.
Versus
Godawari. ...Respondent.
_____________________________________________________________
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? 1 No
For the Petitioner: Mr. Vikrant Chandel, Advocate.
For the respondent Mr. Devender K. Sharma, Advocate.
_________________________________________________________
Justice Tarlok Singh Chauhan, Judge (oral):
This petition under section 482 of the Cr.P.C.
takes exception to the order passed by the learned Sessions Judge on 7.9.2016 whereby he rejected the application filed by the petitioner for leading additional evidence under section 311 of the Cr.P.C.
2. The petitioner is facing a complaint under section 138 of the Negotiable Instruments Act, 1881 (for short 'Act') on the allegation that he had issued a 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 2 check to the complainant/respondent which had .
been dishonoured.
3. it is not in dispute that after both the parties led their respective evidence and the case was fixed for arguments on 16.12.2015, the petitioner filed the aforesaid application for leading additional evidence on the ground as mentioned in para 2 of he application, which reads thus:
"2. That defence of the applicant/accused is that the alleged cheque bearing No.678341 is not issued by the applicant to the respondent/complainant and even this cheque is not related to applicant. However when the applicant had examined the bank manager to prove his defence then it reveals that the cheque book of alleged cheque is issued to two person one applicant and second to one Hans Raj and there are so many cutting and over writing on the record which is produced by the bank manager. However, the alleged cheque number's cheque book is stated to be issued to Hans Raj by the bank but in cross-examination the witness admitted that the alleged series cheque book is issued to applicant. It seems manipulation of the bank officials with the complainant. So the applicant to prove his defence wants to call his account No. 0921000101087382 computerized record, whether any cheque book is ever issued to the applicant to this account number or not by summoning the bank official as witness for the fair decision of the case."::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 3
4. Learned Sessions Judge dismissed the .
application by according the following reasons:
"11. In the application under section 311 Cr.P.C., the petitioner has prayed to produce bank official as witness alongwith computerized record of his bank account to the effect that any cheque book was issued to the petitioner or not. But as stated above, in his defence, the petitioner has already examined Sh. Om Prakash Tahkur, Assistant Manager, P.N.B. Branch Rewalsar as a witness, who has deposed from the record that the cheque book having cheque serial No.678341 has been issued in the name of Duni Chand and the record bears his signature as well in the relevant column regarding issuance of cheque book to him. This fact has been deposed by him not only in his examination-in-chief but also in the cross-examination. It appears that the petitioner wants to take the benefit of some cutting in the record which shows that earlier the name of one Hans Raj was written as the person to have been issued the cheque in question whereas the cheque book in question was not issued to Hans Raj. However, the evidence of this witness (DW-1) is very much clear regarding the fact that the cheque in question i.e. cheque Ex.CW-1/B belongs to the petitioner and the account number maintained in the bank is also that of petitioner. This witness has gone to the extent of saying that when the cheque in question was received in the bank, the bank officials first verified the account number as well as signatures of the petitioner and from the record they found that account number and signature mark A tallied with the signature and account number of the petitioner. On the face of such statement or ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 4 evidence on record there is hardly and necessity to give further opportunity to the petitioner to summon the .
record again pertaining to the account of the petitioner.
In other words, it is not essential to summon the computerized record pertaining to the bank account of the petitioner for the just decision of the case. Being so it is difficult to say that the learned trial court while passing the impugned order has abused the process of court or had not followed the proper procedure or that there has been failure of justice. Since there is no ambiguity in the statement of DW-1, I do not find any merit in the petition and no interference is required by this Court with the impugned order."
5. It is against this order that the petitioner has filed the instant petition on the ground that when the statement of CW-2 is read in totality, it does indicate that his statement is shaky on the specific issue, i.e. pertaining to a cheque of a relevant cheque book, which related to the present petitioner.
Strength is also sought to be drawn from the information received under the Right to Information Act, which admittedly has been received much after the application for additional evidence had been filed.
6. However, the moot question that requires consideration is whether the petitioner should be afforded a chance to prove whether any cheque book, ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 5 in fact had been issued to him of the account number .
as mentioned in the application, by summoning the bank official as a witness even though the official witness had already been examined.
7. I have heard learned counsel for the parties and have gone through the records of the case carefully.
8.
r For the proper appreciation of the controversy involved, reference to Section 311 Cr.P.C.
would be necessary and the same 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 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".
9. The Hon'ble Supreme Court in Zahira Habibullah Sheikh (5) and another vs. State of Gujarat and others (2006) 3 SCC 374 has held as under:
::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 6"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 ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 7 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.
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 Jamatraj Kewalji Govani vs. State of Maharashtra, AIR 1968 SC 178.
30. Right from the inception of the judicial system it has been accepted that discovery, vindication and ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 8 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.
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 : (ER p.
957):
"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 ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 9 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."
32. 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 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 any 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 ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 10 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."
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 are harmful to the 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. Courts have always been considered to have an over-riding duty to maintain public confidence in the ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 11 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 confined 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 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 ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 12 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 to 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 ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 13 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 requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty stage-managed, tailored and partisan trial.
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."
10. What would be the scope and ambit of the powers conferred upon a Court under Section 311 Cr.P.C. has been exhaustively discussed by the Hon'ble Supreme Court in Raja Ram Prasad Yadav vs. State of Bihar and another (2013) 14 SCC 461 wherein it has been held that the powers under Section 311 of the Code to 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, can be exercised at any stage provide that the same is required for the just decision of the case. I may quote ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 14 with project the observations made in paragraphs 14 .
to 17 which read thus:
"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 ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 15 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 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: (AIR pp. 182-83) "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, ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 16 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."
r (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: (SCC p. 277) "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 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 ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 17 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 (2) vs. State of Bihar, 1999 (7) SCC 604, the proposition has been reiterated as under in paragraph 9: (SCC p. 613) "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: (SCC p. 538) "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 ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 18 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."
r (Emphasis added) 15.5. In Iddar & Ors. vs. Aabida & Anr. (2007) 11 SCC 211, the object underlying under Section 311 Cr.P.C., has been stated as under in para 9: (SCC pp. 213-14) "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 ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 19 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. (2012) 7 SCC 56, r 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: ( SCC pp. 63-64) "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: (SCC p. 432, para 6) "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 trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible."
* * * ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 20
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 r 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 added) 15.7. In a recent decision of this Court in Sheikh Jumman vs. State of Maharashtra (2012) 12 SCC 486, 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) (2013) 5 SCC 741, where one of us was a party, various other decisions of this Court were referred to and the ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 21 position has been stated as under in paragraphs 15 and 16: (SCC pp. 748-49):
.
"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 r lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the 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 ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 22 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; Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) (2007) 2 SCC 258; Vijay Kumar v. State of U.P. & Anr., (2011) 8 SCC 136;::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 23
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:
17.1. 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?
17.2. 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 speculative presentation of facts, as thereby the ends of justice would be defeated.
17.3. 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.
17.4. 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. 17.5. 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.
17.6. The wide discretionary power should be exercised judiciously and not arbitrarily.
::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 2417.7. 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.
17.8. 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.
17.9. 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.
17.10. 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. 17.11. 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.
17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 2517.13. 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. 17.14. 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."
11. The provisions of Section 311 Cr.P.C. was yet again subject matter of a recent decision in Mannan Sk and others vs. State of West Bengal and another AIR 2014 SC 2950 and it was held:
"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 ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 26 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 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."
12. It would be noticed from the aforesaid exposition of law that even though the Court at any stage has power to summon, recall and re-cross-
examine any person in evidence which appears to be essential to just decision of the case with the object to find out the truth, however, the said observations cannot be read as laying down any inflexible rule to routinely permit a recall of witness on the ground ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 27 that cross-examination was not proper for the .
reasons attributable to a counsel. While advancement of justice remains the prime object of law, it cannot be understood that recall can be allowed for the asking or reasons related to mere convenience and this was so held by Hon'ble Supreme Court in State (NCT of Delhi) vs. Shiv Kumar Yadav and another, (2016) 2 SCC 402.
13. What is the true import of the powers exercisable under Section 311 of the Cr.P.C., was a subject matter of decision in a recent judgment of the Hon'ble Supreme Court in State of Haryana vs. Ram Mehar and others (2016) 8 SCC 762, wherein it was observed as under:-
"42. At this juncture, we think it apt to state that the exercise of power under Section 311 Cr.P.C. can be sought to be invoked either by the prosecution or by the accused persons or by the Court itself. The High court has been moved by the ground that the accused persons are in custody and the concept of speedy trial is not nullified and no prejudice is caused and, therefore, the principle of magnanimity should apply. Suffice it to say, a criminal trial does not singularly centres around the accused. In it there is involvement of the prosecution, the victim and the victim represents the collective. The cry of the collective may not be uttered in decibels which ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 28 is physically audible in the court premises, but the Court has to remain sensitive to such silent cries and .
the agonies, for the society seeks justice. Therefore, a balance has to be struck. We have already explained the use of the words "magnanimous approach" and how it should be understood. Regard being had to the concept of balance, and weighing the factual score on the scale of balance, we are of the convinced opinion that the High court has fallen into absolute error in axing the order passed by the learned trial Judge. If we allow ourselves to say, when the concept of fair trial is limitlessly stretched, having no boundaries, the orders like the present one may fall in the arena of sanctuary of errors.
Hence, we reiterate the necessity of doctrine of balance."
14. In view of the aforesaid exposition of law, it is clear that the Court at any stage of trial has every power to summon and examine or recall and re-
examine any such person if his evidence appears to be essential to just decision of the case with the object of finding out the truth. It is for the Court to take into consideration the facts of each case and then decide whether the evidence sought to be recalled or produced by any party is necessary for the just decision of the case or not. In any case, the right of the objecting party can always be safeguarded by granting equal opportunity of not only cross-
::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 29examining the witnesses but also by affording a right .
to lead evidence in accordance with law.
15. However, as observed in Shiv Kumar Yadav's case (supra) such permission to recall a witness cannot be exercised in a routine and casual manner or even at mere convenience of a party. A balance has to be strike out between the competing rights of the complainant and the accused.
16. A court of law, to reiterate has to be an involved participant in the quest for truth and justice and is not expected only to officiate a formal ritual in a proceeding farseeing an inevitable end signaling travesty of justice. Mission justice so expectantly and reverently entrusted to the judiciary would then be reduced to a teasing illusion and a sovereign and premier constitutional institution would be rendered a suspect for its existence in public estimation.
Considering the live purpose for which judiciary exists, this would indeed be a price which it cannot afford to bear under any circumstance (Refer : Pooja ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 30 Pal vs. Union of India and others, (2016) 3 SCC .
135).
17. It cannot be disputed that in case the petitioner succeeds in establishing and proving what is sought to be proved in the application, then it would change the entire complexion of the case, therefore, in such circumstances allowing of the application would go a long way to meet the ends of justice and, therefore, cannot be dismissed at this stage.
18. After all, every trial is a voyage of discovery in which the truth is the quest. It is therefore, the duty of the Court to ensure that the truth in a case comes up, the entire journey of a Judge to discern the truth from the pleadings, documents, evidence and arguments of the parties.
The truth is the basis of justice delivery system. The truth should be the guiding star in the entire judicial process and, therefore, the Court's serious endeavour has to be focused only to find out where in fact the truth lies. The Judges at all levels have to seriously ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 31 engage themselves in the journey of discovering the .
truth. That is their mandate, obligation and bounden duty. Justice system will acquire credibility only when the people will be convinced that justice is based on the foundation of the truth.
19. Noticeably, learned Sessions Judge while rejecting the application in question has taken and adopted a hyper technical view without little realizing that serious prejudice would be caused to the accused in case the application as preferred by him is not allowed.
20. Having said so, I find merit in the petition and the same is allowed. The order dated 7.9.2016 is set aside and the petitioner is permitted to lead evidence as is prayed in the application filed by him and at the same time the respondent not only would be entitled to cross-examine the witness but would also be afforded an opportunity to lead rebuttal evidence. The parties, through their counsel, are directed to appear before the court below on 24.7.2017. The Registry is directed to send the ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP 32 record forthwith to the court below so as to reach the .
same well before the date fixed.
21. Before parting, it may be observed that the proceedings in this case were initiated more than three years back, i.e. 30.6.2014, learned court below shall make all out endeavours to conclude the same as expeditiously as possible and in no event later than 31.12.2017.
22. The petition is disposed of in the aforesaid terms leaving the parties to bear their own costs.
(Tarlok Singh Chauhan), Judge.
12.7.2017 *awasthi* ::: Downloaded on - 14/07/2017 23:58:29 :::HCHP