Karnataka High Court
Anil Balagar vs The State Of Karnataka on 1 June, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 3136 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 3136 OF 2023
BETWEEN:
ANIL BALAGAR,
S/O BASAPPA BALAGAR,
AGED ABOUT 40 YEARS,
R/AT NO.32/1,
OPP. SHARADASEVASRAMA,
BSK 3RD STAGE,
BENGALURU - 560 085,
PERMANENT RESIDENCE
NEAR AARABAL SAHUKAR HOUSE,
MUNDASRAVAR HOUSE,
ANEGUNDRIRAVAR STREET,
SHAHAPUR TALUK,
YADIGIR DISTRICT, KARNATAKA.
...PETITIONER
Digitally signed (BY SRI. K.B.K. SWAMY., ADVOCATE)
by PADMAVATHI
BK
AND:
Location: HIGH
COURT OF
KARNATAKA
1. THE STATE OF KARNATAKA,
GIRINAGAR POLICE STATION,
BENGALURU CITY - 560 001,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001.
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CRL.P No. 3136 of 2023
2. SHIVAKUMAR S.K.,
S/O LATE KEMPEGOWDA,
AGED ABOUT 31 YEARS,
R/AT NO.32, SHARADHA ASHRAMA,
OPP. PES COLLEGE,
VEERABHADRANAGAR,
BSK 3RD STAGE,
BENGALURU - 560 085.
...RESPONDENTS
(BY SMT.K.P.YASHODA, HCGP FOR R1)
THIS CRL.P. IS FILED U/S 482 OF CR.P.C., PRAYING TO
QUASH THE ORDER 15.02.2023, IN SPL.C.C.NO.362/2017,
PENDING ON THE FILE OF HONBLE ADDL. CITY CIVIL AND
SESSIONS JUDGE (FTSC-III) AT BENGALURU, REGISTERED
FOR THE OFFENCES P/U/S 363, 366(A), 376(2)(I), 376(M),
302, 201 OF IPC AND SECTION 5(m), 5(i), 5(r), 6 OF POCSO
ACT 2012.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question an order dated 15.02.2023 passed by the Special Court in Special C.C.No.362/2017 turning down an application filed by the petitioner under Sections 311 of the Cr.P.C. seeking recalling of witnesses so named in the application for further cross examination.
-3- CRL.P No. 3136 of 20232. Heard Sri. K.B.K. Swamy, learned counsel appearing for the petitioner and Smt. K.P. Yashoda, learned HCGP appearing for the respondent No.1.
3. Brief facts that lead the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:
Petitioner is the accused, who is facing trial for the offence punishable under Sections 363, 366(A), 376(2)(I), 376(M), 302, 201 of IPC and Section 5(m), 5(i), 5(r), 6 of the POCSO Act. It transpires that during the pendency of the trial, the petitioner files an application under Section 311 of the Cr.P.C. seeking recall of PW-7, PW-20 and PW-23 for the purpose of cross-examination on the score that PW-7 and PW-
20 had appeared before the Court and they were not cross examined in full. That said application had come to be rejected by the concerned Court, which drove the petitioner to this Court in a Crl.A.No.1285/2018 connected with Crl.A.5/2018.
This Court directed grant of an opportunity to the accused to cross-examine the witnesses. After the matter was remitted back to the hands of the concerned Court, the petitioner then -4- CRL.P No. 3136 of 2023 files an application under Section 311 of the Cr.P.C. seeking recall of PW-7 and PW-20 for further cross-examination along with others. Opportunity was granted twice, after the remand from the hands of this Court. The counsel for the petitioner did not cross-examine those witnesses in full and sought time to further cross-examine. The concerned Court observing that the matter has been remitted back from the hands of this Court and therefore, further time to cross examine the witnesses would not be granted. It is this order that drives the petitioner, yet again to this Court in the subject petition.
4. Learned counsel for the petitioner taking this Court through the order impugned would seek to contend that the right of the cross-examination is denied to the accused, which is contrary to the spirit of Section 311 of the Cr.P.C. He would submit that the offences alleged against the petitioner being grave, cross-examination of the witnesses or further cross-
examination of the witnesses would be imperative.
5. Learned HCGP though would seek to refute the submissions seeking to contend that opportunity not once, but twice was granted to the petitioner, having lost the opportunity -5- CRL.P No. 3136 of 2023 cannot now contend that he should be granted further opportunity to cross examine the witnesses.
6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the available material on record.
7. The afore-narrated facts are not in dispute. The issue now lies in a narrow compass. The allegations against the petitioner is grave. They are for offence punishable under Sections 366(A), 376(2)(I), 376(M), 302, 201 of the IPC and Sections 5(m), 5(i), 5(r) and 6 of the POCSO Act. They are undoubtedly grave and can result in life imprisonment, in the event the allegations against the petitioner is proved.
Therefore, all available opportunity of defence to the petitioner should be rendered. This is the spirit of Section 311 of Cr.P.C.
8. Section 311 of the Cr.P.C. reads as follows:
"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 -6- CRL.P No. 3136 of 2023 any such person if his evidence appears to it to be essential to the just decision of the case."
9. The intend and purport of Section 311 of the Cr.P.C.
need not detain this Court for long or delve deep into the matter. This Court in Crl.P.No.1266 of 2022 decided on 12.08.2022 has held as follows:
"8. The petitioner-accused is facing charges which are the ones punishable under Sections 307, 376, 341, 448, 450 and 506 of the IPC. When the trial was in progress and all the witnesses had been cross-examined, an application comes about from the petitioner under Section 311 of the Cr.P.C. The application reads as follows:
"It is submitted on behalf of the Accused as follows:-
It is submitted that the complainant has registered the case against the accused for the offences punishable under Sections 448, 450, 341, 307, 376, 506 IPC. On the previous dates of hearing the prosecution examined PW-1, 2, 4 to 7, 12, 13 and 16 and cross-examination also done for PW-1, 2, 4 to 7, 12 & 13 and cross examination was not done for PW-16 for personal inconvenience of the counsel. But at the time of cross-examination of the said witnesses some material facts were left out. The said witness is material witness and to prove the accused as innocent further cross-examination of PW-1, 2, 4 to 7, 12 & 13 and cross-examination of PW-16 is very much necessary. Hence it is just and necessary to recall PW-1, 2, 4 to 7, 12 & 13 for the purpose of further cross examination and PW-16 for cross- examination. Hence, this application.-7- CRL.P No. 3136 of 2023
It is further submitted that the said reasons is not intentional one, but due to the above said bona fide reason. If this Hon'ble Court allowed the application no hardship and injustice will be caused to the other side, otherwise the accused will be put into great hardship and injustice.
WHEREFORE, it is humbly prayed that this Hon'ble Court be pleased to recall PW-1, 2, 4 to 7, 12 and 13 for the purpose of further cross-examination and PW-16 for cross-examination by allowing this application in the best interest of justice."
The reason behind filing of the application under Section 311 Cr.P.C. as could be gathered from the recitals in the application is, on previous dates of hearing PW-1, 2, 4 to 7, 12 and 13 had been cross-examined and PW-16 was not cross- examined on the ground that the counsel had some inconvenience. The application further narrates that on the said dates when other witnesses were cross-examined, some material facts were left out. Objections were filed to the said application contending that mere change in counsel would not enure to the benefit of the accused to seek recalling of witnesses.
9. The learned Sessions Judge by his order dated 20th December, 2021 rejects the application insofar as it concerns recalling of PWs 1, 2, 4 to 7, 12 and 3 but permits cross- examination of PW-16 on the ground that he has never been cross-examined. While rejecting the application, the learned Sessions Judge notices that the witnesses who were declined to be recalled had been examined and cross-examined and the application under Section 311 CrPC was filed after five months of the date on which the evidence of aforesaid witnesses was concluded. The reason given by the learned Sessions Judge is that mere change in counsel cannot be a ground to permit the application under Section 311 CrPC. Change in counsel is not a ground that was urged in the application or even mentioned anywhere in the order sheet maintained by the Court. It was a ground taken up in the objections filed by the prosecution. The application only mentions that the counsel could not cross-
-8- CRL.P No. 3136 of 2023examine the witnesses on the said date on account of certain inconvenience and the material aspects were left out. Therefore, the reasons rendered by the learned Sessions Judge run counter to the application so filed. It is not in dispute that the petitioner is facing allegations which if proved would result in imprisonment for ten years as they are grave offences.
10. It would be so, particularly when an accused is facing charges of such grave offences, it become necessary for the concerned Court to consider the purport of Section 311 of the Cr.P.C. The purport and the spirit behind Section 311 of the Cr.P.C. need not detain this Court for long for delve deep into the matter. The Apex Court in plethora of judgments considering the spirit of Section 311 of the Cr.P.C. has delineated the principles from time to time. Before considering the judgments rendered by the Apex Court, I deem it appropriate to notice Section 311 of the Cr.P.C. and it reads as follows:
"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."
(Emphasis supplied) The Apex Court in the case of NATASHA SINGH VS. CBI1, has held as follows:
"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 1 (2013) 5 SCC 741 -9- CRL.P No. 3136 of 2023 to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to 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 CrPC 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 jeopardised. 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
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CRL.P No. 3136 of 2023ensure 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 [AIR 1958 SC 376 : 1958 Cri LJ 701] , Zahira Habibulla H. Sheikh v. State of Gujarat [(2004) 4 SCC 158 : 2004 SCC (Cri) 999 : AIR 2004 SC 3114] , Zahira Habibullah Sheikh (5) v. State of Gujarat [(2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8 : AIR 2006 SC 1367] , Kalyani Baskar v. M.S. Sampoornam [(2007) 2 SCC 258 : (2007) 1 SCC (Cri) 577] , Vijay Kumar v. State of U.P. [(2011) 8 SCC 136 : (2011) 3 SCC (Cri) 371 : (2012) 1 SCC (L&S) 240] and Sudevanand v. State [(2012) 3 SCC 387 : (2012) 2 SCC (Cri) 179] .]"
(Emphasis supplied) A little later, the Apex Court in the case of RAJARAM PRASAD YADAV VS. STATE OF BIHAR2, wherein it is held as follows:
"17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 CrPC 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 CrPC 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.2
(2013) 14 SCC 461
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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 re-examine any such person.
17.4. 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 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.
17.7. 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 CrPC 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.
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CRL.P No. 3136 of 202317.10. Exigency of the situation, fair play and good sense should be the safeguard, 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.
17.13. 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 CrPC 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
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CRL.P No. 3136 of 2023ensured being a constitutional goal, as well as a human right."
(Emphasis supplied) The Apex Court in the case of MANJU DEVI VS. STATE OF RAJASTHAN3, has held as follows:
"10. It needs hardly any emphasis that the discretionary powers like those under Section 311 CrPC are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone. The principles underlying Section 311 CrPC and amplitude of the powers of the court thereunder have been explained by this Court in several decisions [ Vide Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271 : 1991 SCC (Cri) 595; Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999; Mina Lalita Baruwa v. State of Orissa, (2013) 16 SCC 173 : (2014) 6 SCC (Cri) 218; Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461 : (2014) 4 SCC (Cri) 256 and Natasha Singh v. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828] . In Natasha Singh v. CBI [Natasha Singh v. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828] , though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under: (SCC pp. 746 & 748-49, paras 8 &15) "8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under CrPC, or to summon any person as a witness, or to recall and re-
examine any person who has already been examined if his evidence appears to it, to be 3 (2019) 6 SCC 203
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CRL.P No. 3136 of 2023essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.
***
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 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to 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 CrPC 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
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CRL.P No. 3136 of 2023"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."
(Emphasis in original)
15. In the given set of facts and circumstances, we are clearly of the view that the trial court disposed of the application under Section 311 CrPC on entirely irrelevant considerations and the High Court also failed to exercise its jurisdiction under Section 482 CrPC while overlooking and ignoring the material and relevant aspects of the case. In our view, the said application under Section 311 CrPC deserves to be allowed."
(Emphasis supplied) Following the judgment of MANJU DEVI (supra), the Apex Court in the case of STATE REP. BY THE DEPUTY SUPERINTENDENT OF POLICE VS. TR. N. SEENIVASAGAN4, has held as follows:
"13. In our view, having due regard to the nature and ambit of Section 311 of the CrPC, it was appropriate and proper that the applications filed by the prosecution ought to have been allowed. Section 311 provides that any Court may, at any stage of any inquiry, trial or other proceedings under the CrPC, 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". The true test, therefore, is whether it 4 2021 SCC ONLINE SC 212
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appears to the Court that the evidence of such person who is sought to be recalled is essential to the just decision of the case.
14. In Manju Devi v. State of Rajasthan4, a two-Judge bench of this Court noted that an application under Section 311 could not be rejected on the sole ground that the case had been pending for an inordinate amount of time (ten years there). Rather, it noted that "the length/duration of a case cannot displace the basic requirement of ensuring the just decision after taking all the necessary and material evidence on record. In other words, the age of a case, by itself, cannot be decisive of the matter when a prayer is made for examination of a material witness". Speaking for the Court, Justice Dinesh Maheshwari expounded on the principles underlying Section 311 in the following terms:
"10. It needs hardly any emphasis that the discretionary powers like those under Section 311 CrPC are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone. The principles underlying Section 311 CrPC and amplitude of the powers of the court thereunder have been explained by this Court in several decisions [Vide Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271 : 1991 SCC (Cri) 595; Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999; Mina Lalita Baruwa v. State of Orissa, (2013) 16 SCC 173 : (2014) 6 SCC (Cri) 218; Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461 : (2014) 4 SCC (Cri) 256 and Natasha Singh v. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828]. In Natasha Singh v. CBI [Natasha Singh v. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828], though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under
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Section 311, this Court observed, inter alia, as under
: (SCC pp. 746 & 748-49, paras 8 & 15) "8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.
***
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 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to 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,
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CRL.P No. 3136 of 2023provided 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 CrPC 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."
(Emphasis in original) Considering all the judgments, the Apex Court in the case of V.N.PATIL VS. K. NIRANJAN KUMAR5, has held as follows:
"13. The scope of Section 311 CrPC which is relevant for the present purpose is reproduced hereunder:
"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."5
(2021) 3 SCC 661
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CRL.P No. 3136 of 202314. The object underlying Section 311 CrPC 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 significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that the discretionary power conferred under Section 311 CrPC has to be exercised judiciously, as it is always said "wider the power, greater is the necessity of caution while exercise of judicious discretion".
15. The principles related to the exercise of the power under Section 311 CrPC have been well settled by this Court in Vijay Kumar v. State of U.P. [Vijay Kumar v. State of U.P., (2011) 8 SCC 136 : (2011) 3 SCC (Cri) 371 : (2012) 1 SCC (L&S) 240] : (SCC p. 141, para 17) "17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously. Before directing the learned Special Judge to examine Smt Ruchi Saxena as a court witness, the High Court did not examine the reasons assigned by the learned Special Judge as to why it was not necessary to examine her as a court witness and has given the impugned direction without assigning any reason."
16. This principle has been further reiterated in Mannan Shaikh v. State of W.B. [Mannan Shaikh v. State of W.B., (2014) 13 SCC 59 : (2014) 5 SCC (Cri) 547] and thereafter in Ratanlal v. Prahlad Jat [Ratanlal v. Prahlad Jat, (2017) 9 SCC 340 : (2017) 3 SCC (Cri) 729] and Swapan Kumar Chatterjee v. CBI [Swapan
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CRL.P No. 3136 of 2023Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] . The relevant paragraphs of Swapan Kumar Chatterjee [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] are as under: (Swapan Kumar Chatterjee case [Swapan Kumar Chatterjee v. CBI, (2019) 14 SCC 328 : (2019) 4 SCC (Cri) 839] , SCC p. 331, paras 10-11) "10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine, or (ii) to recall and re- examine any such person if his evidence appears to be essential to the just decision of the case.
11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law."
17. The aim of every court is to discover the truth. Section 311 CrPC is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311
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CRL.P No. 3136 of 2023CrPC has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice."
(Emphasis supplied) Following the afore-quoted judgments, the Apex Court, in the case of VARSHA GARG V. STATE OF MADHYA PRADESH6 has held as follows:
"31. 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. 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.
32. 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.
33. 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 6 2022 SCC OnLine SC 986
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CRL.P No. 3136 of 2023touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory.
34. A two judge Bench of this Court in Mohanlal Shamji Soni (supra) while dealing with pari materia provisions of Section 540 of the Criminal Code of Procedure 1898 observed:
"16. The second part of Section 540 as pointed out albeit imposes upon the court an obligation of summoning or recalling and re-examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any party to the proceedings points out the desirability of some evidence being taken, then the court has to exercise its power under this provision -- either discretionary or mandatory -- depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice."
35. Justice S Ratnavel Pandian, speaking for the two judge Bench, noted that the power is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which it can be exercised or the manner of its exercise. It is only circumscribed by the principle that the "evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means." In that context the Court observed:
"18 ...Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by 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 rival side and further the
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additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties."
36. Summing up the position as it obtained from various decisions of this Court, namely Rameshwar Dayal v. State of U.P.19, State of W.B. v. Tulsidas Mundhra20, Jamatraj Kewalji Govani v. State of Maharashtra21, Masalti v. State of U.P.22, Rajeswar Prosad Misra v. State of W.B.23 and R.B. Mithani v. State of Maharashtra24, the Court held:
"27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case."
37. The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest."
The Apex Court holds that the application so filed under Section 311 of the Cr.P.C. cannot be dismissed merely on the ground that it is filed for recalling of witnesses to fill in the lacunae, if any, in the trial.
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CRL.P No. 3136 of 202311. On a coalesce of the afore-quoted judgments of the Apex Court and considering the purport or the spirit of Section 311 of the Cr.P.C., what would unmistakably emerge is, the power of the Court under Section 311 of the Cr.P.C. is wide, but to be used with caution and circumspection, as the word deployed in Section 311 of the Cr.P.C. is at any stage of any inquiry, trial or any other proceedings under the Cr.P.C. Fair trial is the soul of criminal procedure and it is the duty of the Courts to ensure fairness and it is not hampered or threatened at any stage of the proceedings.
12. It is trite that fair trial includes affording of fair opportunity to the person concerned albeit the prosecution or the accused as the aim and object of every Court is to discover the truth. Section 311 of the Cr.P.C. is one of many such provision, which strengths the arms of the Court to unearth the truth by procedure sanctioned by the law. This is the soul of the provision. A caveat, the Court should scrutinize if the applications are filed as a ruse to drag on the proceedings, except on such conclusion after application of judicious mind, every other occasion the applications so filed should be permitted, bearing in mind the observations made by the Apex Court, as quoted supra. "
10. In the light of the facts obtained in the case at hand and the judgment of this Court quoted (supra), I deem it appropriate to grant the petitioner one opportunity to cross-
examine / further cross-examine the witnesses that he had sought for and this would be the last straw of opportunity to the petitioner for further cross-examination and for applications of this kind in future would not be entertained.
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11. For the aforesaid reasons, the following:
ORDER
1) Criminal petition is allowed.
2) The order dated 15.02.2023 in Special C.C.No.362/2017 pending on the file of Additional City Civil and Sessions Judge (FTSC- III) at Bengaluru stands quashed.
3) The concerned Court shall permit the witnesses so sought in the application under Section 311 of the Cr.P.C. to be cross-examine/ further cross-
examine on a date fixed by the concerned Court.
4) It is made clear that this is the last opportunity to the petitioner to cross-examine the witnesses and conclude the proceedings.
5) The concerned Court shall regulate its procedure for cross-examination/ further cross-examination and pass appropriate orders in accordance with law.
Sd/-
JUDGE JY CT:SN List No.: 1 Sl No.: 6