Himachal Pradesh High Court
Sunder Lal vs Urmila Thakur on 16 March, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Revision No. 313 of 2017
Decided on: March 16, 2018
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Sunder Lal .........Petitioner
Versus
Urmila Thakur ...Respondent
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Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge
Whether approved for reporting?1yes.
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For the petitioner: Mr. Rajnish Maniktala, Advocate.
For the respondent: Mr. Naveen K. Bhardwaj, Advocate.
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Sandeep Sharma, J. (Oral)
Instant petition is directed against order dated 18.8.2017, passed by the learned Judicial magistrate First Class, Manali in Cr. Case No. 69/188/2015, whereby an application having been filed by the petitioner-accused (hereinafter, 'accused') under Section 311 CrPC has been dismissed.
2. Facts, shorn of unnecessary details, necessary for the adjudication of the present case are that respondent-complainant (hereinafter, 'complainant') filed a complaint under Section 138 of the Negotiable Instruments Act against the accused, alleging therein that the accused had borrowed a sum of Rs.7.00 Lakh from her and with a view to discharge his aforesaid liability, issued a cheque. Since cheque allegedly issued in favour of the complainant Whether reporters of the Local papers are allowed to see the judgment? .
::: Downloaded on - 21/03/2018 23:09:40 :::HCHP -2-came to be dishonoured owing to "insufficiency of funds", complainant was compelled to initiate proceedings under Section 138 of the Act ibid in the competent court of law. Complainant, by .
way of an affidavit tendered her evidence in support of her claim put forth in the complaint. Accused also cross-examined the complainant, as is evident from Annexure P-3.
3. After conclusion of evidence of complainant, an application came to be filed on behalf of the accused under Section 311 CrPC, praying therein to recall the complainant for cross-
examination. Accused averred in the application that complainant needs to be cross-examined on the point that the cheque was never issued by the accused and complainant had failed to prove that it was in discharge of a legally enforceable debt. Accused also stated in the application that factum with regard to signatures on the cheque could not be put to the complainant as such, she needs to be cross-examined qua aforesaid aspect of the matter. By way of application referred herein above, accused also sought cross-
examination of the complainant on the question as to what was the source of money allegedly lent by her to the accused. Since at the time of cross-examination, learned counsel representing accused had received a message that his mother was unwell, he hurriedly concluded the cross-examination and in this process inadvertently omitted to put aforesaid suggestions to the complainant.
::: Downloaded on - 21/03/2018 23:09:40 :::HCHP -3-4. Aforesaid prayer having been made by accused was vehemently opposed by the complainant by way of reply (Annexure P-6). Complainant alleged that the application has been filed with a .
view to fill up lacuna in the defence and with a view to linger on the proceedings. Complainant further claimed that she was cross-
examined at length on all the aspects averred in the application as such, application deserves to be dismissed. Learned Court below vide order dated 18.8.2017 dismissed the application filed by the accused and listed the matter for recording statement of accused under Section 313 CrPC on 15.9.2017, whereafter, instant petition came to be filed before this court.
5. Mr. Rajnish Maniktala, learned counsel representing the accused, while terming impugned order passed by court below to be illegal and contrary to the law laid down by the Hon'ble Apex Court as well as this Court, strenuously argued that there is no application of mind by the court below while passing impugned order, as such, same deserves to be quashed and set aside. While referring to the provisions contained in Section 311 CrPC, Mr. Maniktala contended that court enjoys vast power to summon, re-
examine or recall a witness at any stage of proceedings, provided that the same is necessary for proper adjudication of the case.
Learned counsel further contended that while exercising power under Section 311 CrPC, paramount consideration of the court is to do justice to the case and court can examine a witness at any ::: Downloaded on - 21/03/2018 23:09:40 :::HCHP -4- stage, even if same results in filling up lacuna or loop holes. While placing reliance upon judgment rendered by this Court in CrMMO No. 209 of 2017 titled Sardar Singh vs. State of Himachal .
Pradesh, learned counsel contended that it has been categorically held by this Court as well as Hon'ble Apex Court that Section 311 CrPC 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. While inviting attention of this Court to the reasoning rendered by court below while passing impugned order, learned counsel stated that the same has been passed in a slipshod manner and as such, same being cryptic and contrary to provisions of law contained in Section 311 CrPC and judgment rendered by this Court, deserves to be quashed and set aside.
6. Mr. Naveen K. Bhardwaj, learned counsel appearing for the complainant supported impugned judgment and contended that there is no illegality and infirmity in the same and as such, same deserves to be upheld. While fairly stating that in terms of Section 311, court enjoys vast power to summon/ re-examine or recall a witness at any stage of proceedings, learned counsel contended that such power can not be exercised by a court to permit the applicant to fill up lacuna. He further contended that explanation rendered in the application for re-examination of complainant is not at all plausible because all the questions sought to be put to complainant in the event of her re-examination have ::: Downloaded on - 21/03/2018 23:09:40 :::HCHP -5- been already asked in the cross-examination held earlier. Mr. Bhardwaj further contended that change of counsel or his inability to ask material question during cross-examination can not be a .
ground to recall a witness. Lastly, Mr. Bhardwaj contended that omission on the part of accused to put suggestions, which are sought to be put by way of recalling the witness, has necessarily weakened the case of accused to the benefit of complainant and as such, aforesaid omission which is/was not bonafide can not be
7.
r to allowed to be corrected/ rectified by learned court below by way of re-examination of the aforesaid witness.
I have heard the learned counsel for the parties and gone through the record of the case carefully.
8. Before ascertaining correctness of aforesaid submissions having been made by the learned counsel for the parties vis-a-vis impugned order passed by the learned court below, this Court deems it proper to take note of the provisions of law contained under Section 311 CrPC:
""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 reexamine any such person if his evidence appears to it to be essential to the just decision of the case."::: Downloaded on - 21/03/2018 23:09:40 :::HCHP -6-
9. Careful perusal of aforesaid provision clearly suggests that court enjoys vast power to summon any person as a witness or recall and re-examine a witness provided same is essentially .
required for just decision of the case. Moreover, such exercise of power can be at any stage of inquiry, trial or proceedings under the Code, meaning thereby applicant can file an application at any time before conclusion of trial. Very object of Section 311 is to bring on record evidence not only from the point of view of accused and prosecution but also from the point of view of the orderly society.
Otherwise also, it is well established principle of criminal jurisprudence that discovery, vindication and establishment of truth are main purposes of underlying object of courts of justice. It is also well settled that wider the power, greater the responsibility upon court, which exercises such power and exercise of such power cannot be untrammeled and arbitrary, rather same must be guided by object of arriving at a just decision of case. Close scrutiny of aforesaid provision of law further suggests that Section 311 has two parts; first part reserves a right to the parties to move an appropriate application for re-examination of a witness at any stage; but definitely the second part is mandatory that casts a duty upon court to re-examine or recall or summon a witness at any stage if his/her evidence appears to be essential for just decision of case because, definitely the underlying object of aforesaid provision of law is to ensure that there is no failure of justice on account of ::: Downloaded on - 21/03/2018 23:09:40 :::HCHP -7- mistake on the part of either of parties in bringing valuable piece of evidence or leaving an ambiguity in the statements of witnesses examined from either side.
.
10. 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 ::: Downloaded on - 21/03/2018 23:09:40 :::HCHP -8- 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 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.
11. Hon'ble Apex Court in Raja Ram Prasad Yadav vs. State of Bihar and another, (2013)14 SCC 461, has held that ::: Downloaded on - 21/03/2018 23:09:40 :::HCHP -9- power under Section 311 Cr.P.C. to summon any person or witness or examine any person already examined can be exercised at any stage provided the same is required for just decision of the case. It .
may be profitable to take note of the following paras of the judgment:-
"14. A conspicuous reading of Section 311 Cr.P.C. would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression "any" has been used as a pre-fix to "court", "inquiry", "trial", "other proceeding", "person as a witness", "person in attendance though not summoned as a witness", and "person already examined". By using the said expression "any" as a pre-fix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the Court. Order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 Cr.P.C. and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, 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 ::: Downloaded on - 21/03/2018 23:09:40 :::HCHP
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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:-
"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 ::: Downloaded on - 21/03/2018 23:09:40 :::HCHP
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(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 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 ::: Downloaded on - 21/03/2018 23:09:40 :::HCHP
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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) .
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:::: Downloaded on - 21/03/2018 23:09:40 :::HCHP
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"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."
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 ::: Downloaded on - 21/03/2018 23:09:40 :::HCHP
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any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the .
accused, or to 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 ::: Downloaded on - 21/03/2018 23:09:40 :::HCHP
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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; 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.
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f) The wide discretionary power should be exercised judiciously and not arbitrarily.
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 ::: Downloaded on - 21/03/2018 23:09:40 :::HCHP
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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."
12. At this stage, this Court deems it proper to place reliance upon judgment rendered 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 ::: Downloaded on - 21/03/2018 23:09:40 :::HCHP
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consider all the circumstances and decide whether the prayer for recall is genuine."
13. Aforesaid exposition of law clearly suggests that a fair .
trial is main object of criminal jurisprudence and it is duty of court to ensure such fairness is not hampered or threatened in any manner. It has been further held in the aforesaid judgments that fair trial entails interests of accused, victim and society and therefore, grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right. Hon'ble Apex Court has categorically held in the aforesaid judgment that adducing evidence in support of the defence is a valuable right and denial of such right would amount to denial of a fair trial.
14. Hon'ble Apex Court in Raja Ram Prasad Yadav vs. State of Bihar and another, (2013)14 SCC 461, while culling out certain principles required to be borne in mind by the courts while considering applications under Section 311 has held that exercise of widest discretionary powers under Section 311 should ensure that judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts. Hon'ble Apex Court has further held that if evidence of any witness appears to be essential for 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 because very object of exercising power under Section 311 is to find ::: Downloaded on - 21/03/2018 23:09:40 :::HCHP
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out truth and render a just decision. Most importantly, in the judgment referred to herein above, Hon'ble Apex Court has held that court should bear in mind that no party in 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.
15. In the case at hand, there is no dispute that complainant was cross-examined by accused but perusal of Annexure P-3 i.e. cross-examination, conducted upon complainant clearly suggests that counsel representing accused failed to cross-
examine complainant on material points. Though, accused by way of cross-examination of complainant has made an endeavour to prove that no cheque was issued by him but no suggestion qua the same was put by the counsel to the complainant. Similarly, suggestion was put to the complainant that accused had not signed the cheque but signatures on cheque were never put to complainant by accused.
16. Similarly, this Court finds that question with regard to source of income was though put to the complainant, to which complainant replied that she had borrowed the money from somebody, but counsel representing accused failed to put supplementary question to the complainant that from whom she had borrowed that money.
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17. Having carefully perused averments contained in the application filed under Section 311 CrPC and discrepancies in cross-examination of complainant pointed out by the learned .
counsel representing the accused, this Court is inclined to agree with the submissions having been made by learned counsel representing accused that relevant material could not be brought on record inadvertently by the learned counsel representing the accused before court below.
18. Having examined impugned order, this Court has no hesitation to conclude that learned court below miserably failed to look into/consider the averments contained in the application vis-
à-vis cross-examination of complainant already conducted by accused. As has been observed words, "essential to the just decision of case", are the key words and in this regard court may form opinion that for just decision of case, whether it is necessary to recall or re-examine a witness or not? Interestingly, in the case at hand, impugned order passed by court below, nowhere reveals attempt, if any, on the part of court below to form an opinion that re-examination /recall of complainant is necessary for just decision of case. Rather, court below merely after having recorded submissions of the parties, proceeded to reject the prayer having been made by accused. Court below has simply observed in the order that there are no valid reasons to allow application at hand.
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19. This Court is of the considered view that the impugned order is definitely not in consonance with the provisions of law reiterated in CrMMO No. 209 of 2017 titled Sardar Singh vs. State .
of Himachal Pradesh. Argument advanced by learned counsel representing the complainant that re-examination of complainant would amount to filling up of lacuna therein, is also without any merit and deserves to be rejected.
20. Hon'ble Apex Court in Rajendra Prasad vs Narcotic Cell, 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 trial/case can not be understood to be lacuna, which a court can not fill up.
21. It is quite apparent from aforesaid exposition of law 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.
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22. Suggestions proposed to be put to complainant in the event of her recall, certainly relate to questions already put to her in cross-examination as such, it can not be said that anything new .
is sought to be put to the complainant to her disadvantage.
23. Consequently, in view of detailed discussion made herein above as well as law laid down by Hon'ble Apex Court and this Court, impugned order being unsustainable in the eye of law is quashed and set aside. Application filed by accused under Section 311 CrPC is allowed.
He is permitted complainant. Let the matter be listed before the court below on 3.4.2018 for re-examination of complainant. Learned counsel to re-examine the appearing for the parties undertake to cause presence of parties on the aforesaid date. It is made clear that in case accused fails to cross-examine complainant on the given date, no further opportunity shall be granted and his right to cross-examine the complainant shall be deemed to have been closed. Registry to send back the record of the case alongwith a copy of this judgment forthwith, so as to enable court below to do needful in terms of the present order.
Pending applications, if any, are disposed of.
(Sandeep Sharma) Judge March 16, 2018 (Vikrant) ::: Downloaded on - 21/03/2018 23:09:40 :::HCHP