Crl. Rev. No.1991 of 2014 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Rev. No.1991 of 2014 Date of Decision: 09.10.2014 [ENTITY] Petitioner Versus [ENTITY] Respondent BEFORE :- HON'BLE MRS. JUSTICE [ENTITY] Present:- Mr. [ENTITY], Advocate for the petitioner. Mr. [ENTITY], Advocate for the respondent. [ENTITY], J.
The present revision petition has been filed to challenge the order dated 03.06.2014 passed by the Sub Divisional Judicial Magistrate, Abohar, whereby, the application moved by the petitioner for re-summoning a defence witness, who was discharged by the Court below, has been dismissed and also for summoning two additional witnesses.
The petitioner is an accused for offence under [SECTION] of the [ACT]. The case was fixed for defence evidence and the petitioner-accused was asked to lead his evidence. The petitioner moved an application for summoning witnesses. One of the witnesses was the officer of Bharat Petroleum Corporation Limited, Phusa Mandi, Bathinda, who was material for establishing the innocence of the petitioner/accused.
As per case of the petitioner, due to inadvertence/negligence of the counsel, the official record which was to be summoned along with said witness was wrongly mentioned as being the record of the complaint filed by the complainant firm. It was brought to the notice of the Court and even at the time of issuing summons, the trial Court mentioned that the concerned officer be summoned along with record of the respondent firm. The said witness appeared with the relevant record of the respondent firm from the period 01.01.2009 to 31.12.2010 and the trial Court discharged the said witness. When this fact came to the notice of the petitioner, he changed the counsel. It also came to the notice of the petitioner that two material witnesses were not summoned by the earlier counsel and thereafter, the application for summoning additional witnesses and re-summoning the discharged witness was moved. The application moved by the petitioner was dismissed on the ground that he has availed fourteen effective opportunities and earlier also an application for summoning the eleven witnesses was filed and hence there seems no justification for allowing application for summoning those witnesses.
Learned counsel for the petitioner submits that due to negligence/inadvertence of counsel for the petitioner, the official record was wrongly mentioned to be the record of the complaint but it came to the notice of the petitioner subsequently. Only on the basis of statement of counsel that the record of the relevant time was with the said witness, he was discharged by the Court. It has also been argued by learned counsel for the petitioner that the entire record of the case is relevant and for that purpose, re-summoning of discharged witness is necessary. Learned counsel also submits that there was no fault of the petitioner but due to the fault of the counsel, he should not suffer. Nothing has been mentioned in the impugned order as to whether the witnesses and documents, as mentioned in the application, are necessary to establish the innocence of the petitioner or for the purpose to reach at the conclusion as to whether the petitioner is guilty of offence under [SECTION] of the [ACT] or not. Learned counsel also submits that the summoning of said witnesses along with relevant record is necessary for just decision of the case and the petitioner undertakes to complete his evidence within the shortest period by summoning those witnesses as per responsibility of the petitioner.
Learned counsel for the petitioner has relied upon the judgments of Hon'ble the Apex Court in cases [PRECEDENT], [PRECEDENT], judgment of Orissa High Court in case [PRECEDENT], in support of his contentions.
Learned counsel for the respondent submits that in the petition bearing [CASE NUMBER] filed by the respondent, a direction was issued by this Court vide order dated 20.08.2013 to the trial Court to conclude the trial without giving undue adjournments.
Heard the arguments of learned counsel for the parties and have also perused the impugned order as well as zimini orders, which are on record.
Undisputedly, the Court has power to summon a material witness, or to examine a person at "any stage" of "any enquiry", or "trial", or "any other proceedings" under [ACT], or to summon any person as a witness, or to recall and re-examine any person who has already been examined, in case, his evidence appears to be essential at the arrival of a just decision of the case. Undoubtedly, [ACT] 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. This power can be exercised by the Court even suo motu, in case, no such application has been filed by either of the parties. However, the court must satisfy itself that it is necessary to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.
This view has been held in the judgment of Hon'ble the Apex Court in [PRECEDENT] as under :-
"20. Grant of fairest opportunity to the accused to prove his innocence is the object of every fair trial, observed this Court in [PRECEDENT]. The following passage is in this regard apposite :
` 6. In such circumstances, if the new counsel thought to have the material witnesses further examined the court could adopt latitude and a liberal view in the interest of justice, particularly when the court has unbridled powers in the matter as enshrined in [SECTION] 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."
In [PRECEDENT], Hon'ble the Apex Court held that while considering such an application, the court must not imagine or assume what the deposition of the witness would be, in the event that an application under [SECTION] [ACT] is allowed and appreciate in its entirety, the said anticipated evidence. Hon'ble the Apex Court held in para No.9 as under :-
"9. What should be the nature of evidence is not a matter which should be left only to the discretion of the court. It is the accused who knows how to prove his defence. It is true that the court being the master of the proceedings must determine as to whether the application filed by the accused in terms of [SECTION] of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses, etc. If permitted to do so, steps therefore, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant."
In view of the provisions as mentioned above, the scope and object of [SECTION] [ACT] is to enable the court to determine the truth and to reach at a just decision after discovering all relevant facts and also proper proof of such facts. Such application must not be allowed if it merely fills up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accsued, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. It is the duty of the Court to ensure that such fairness should be in the interest of both the parties and the trial Court is to maintain a balance so that no prejudice be caused to either of the parties. It is also a cardinal principle of the law of evidence, that the best available evidence must be brought before the court to render a just decision. In case, it comes to the conclusion that the additional evidence is necessary, without which, it is impossible for the trial Court to pronounce judgment, the Court must exercise such power.
Hon'ble the Apex Court has held that any person can be summoned as a witness or recalled and re-examined even after the evidence has been closed. The observations made in Mohanlal Shamji Soni case (supra) are as under :-
"27 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."
Even on the bare perusal of [SECTION] [ACT], it is clear that a wide discretion has been granted to the Court, in case, there is exigencies of justice. The first part gives a discretionary power, whereas, the second part is mandatory. The use of the word `may' in the first part and of the word `shall' in the second part makes this difference. For first part, the Court is to act in three ways.
(a) Summon any person as a witness.
(b) Examine any person present in Court although not summoned; and
(c) Recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any one of them, if that is necessary for the just decision of the case. There is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the court is bona fide of the opinion that for the just decision of the case, the step must be taken. This power is exercisable at any time before the judgment as has been held in [PRECEDENT] ; [PRECEDENT]; [PRECEDENT]; Khetra Basi Samal and another v. The State of Orissa, AIR 1970 SC 272; [PRECEDENT]; [PRECEDENT]; Nilamani Das v. Bhikari Nayak and others, 1992(5) OCR 268 :
1992(I) OLR 562; [PRECEDENT]; [PRECEDENT] and, [PRECEDENT].
In view of the facts and law position as mentioned above, there is merit in the contentions raised by learned counsel for the petitioner and the impugned order dated 03.06.2014 passed by the Sub Divisional Judicial Magistrate, Abohar is set aside. The application moved by the petitioner is allowed and the trial Court is directed to afford opportunity to the petitioner to produce the witnesses as mentioned in the application and thereafter examine them expeditiously without causing any further delay. The prosecution will be entitled to cross-examine those witnesses. It is also made clear that because of the directions already issued in the petition filed by the respondent and the application moved by the petitioner after a long period, this opportunity is granted by allowing application moved by him subject to payment of costs of ` 10,000/- to be paid to the respondent by way of a draft. The petitioner is also directed to call the said witnesses as mentioned in the application at his own responsibility and expenses.
([ENTITY]) 09.10.2014 JUDGE gurpreet