j J g * IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.M.C. 1902/2011 KARAMVEER SJNGU & OTHERS Petitioners Through Mi". P. Maheshwari, Adv. versus STATE Respondent Through Mr. Pawan Bahl, APP for State. COl^M,: HON'BLE MS. JUSTICE MUKTA GUPTA Q R P E R % 0L06.2011 Crl.M.A. 6778/2011 Exemption allowed subject to just exception. CRL.M.C. 1902/2011 & Crl.M.A. 6777/2011 (stay) Notice. Learned APP for the State accepts notice. By this petition the Petitioners seeks setting aside of the order dated 29''' November, 2010 passed by the Learned Additional Sessions Judge dismissingthe applicationunder Section311 Cr.P.C. and further permitting the Petitioners to cross-examine PVv'-2 Ramveer Bodh @ Salman and PW- 10 ASI Sahab Singh before the Learned Trial Court. The facts giving rise to the present pciition are that the Petitioriers arc CRL.M.C 1902/2011 page i; of 7 I Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified accused facing trial in FIR No. 320/2006 under Section 307/34 IPG registeredat PS Khajuri Khas, Delhi. While the trial was going on PW-2 was examinedon 26"^August,2009 and PW-10on 7"^ May, 2010. However, on the dates when these witnesses were examined, the Petitioner's counsel was not present as there were bereavementsin his family on both the dates. On 5"' August,2010 he movedan applicationfor recallingPW-2 and PW-10 so that he could cross-examine them. However, this application was kept pending and the Petitionersmoved yet another applicationon 4^'' October, 2010 and prayed to the LearnedTrial Court to decide his applicationunder Section 311 of Cr.P.C. for recalling PW-2 and PW-10. By the impugned order the applicationof the Petitionerswas dismissedas their counsel was not presenton the said date. In the meantime,the trial proceededand the matter was listed for argumentsfor 6"^ December,2010. Learned counsel for the Petitioners filed petitions before this Court which were not the appropriateremedies and, thus, withdrewthe same, and finally the present petition has been filed. The grievance of the Petitioners is that on account of failure of appearanceof their counsel on two dates, valuable right to cross-examine PW-2 who is the injured and PW-10 who is the Investigating Officer has CRL.M.C. 1902/2011 page 2 of 7 been denied to him. Learned counsel for the Petitioners states that the right to cross-examine is a valuable right and for the non-appearance of the counsel for the petitioners the same should not have been denied to the accused. He states that the belated filing of the application for recalling PW- 2 and PW-10 i.e. only after PW-10 was examined was because of the negligenceof the counsel and the Petitionerswho are accused have suffered an irreparableprejudicedue to non cross-examinationof materialwitnesses. Learned APP on the other hand contends that the Petitioners have beengrosslycallousin pursuingtheirremedies. PW-2was examinedon 26^'^ August, 2009. Thereafter,other witnesses were examined. On 7^^ May, 2010 PW-10 was examined. However, this application for. recalling PW-2 and PW-10 was filed only on S"' August, 2010. The trial has proceeded further, the witnesses have been examined, arguments heard and the matter is now listedfor 5^'' July, 2011 for judgment. He reliesupon NisarKhan @ Guddii and Ors. vs. State of Uttaranchal, (2006) 9 SCC 386 to contend that a belated application for recalling of the witnesses after a lapse of more than one year that too after the witnesses were examined, cross-examined and discharged should not be permitted in law. I have heard learned counsel for the parties. There is no doubt in a CRL.M.C. 1902/2011 page 3 of 7 case where the witnesses have been cross-examined and discharged, a belated application for recalling of the witnesses only shows that the witnesses have been won-over and, thus, they are then being made to resile from their earlier statements as held by the Hon'ble Supreme Court in Nisar Khan's case (supra). However, in the present case the facts are different. The Petitioners are the accused and two important witnesses of the trial i.e. the injuredPW-2 and the InvestigatingOfficerPW-10 have not been cross- examined at all for the reason that their counsel was not available. Thus, a valuable right has been lost to the Petitioners which will cause them grave prejudice. Even belated filing of the applicationfor recallingthe witness only shows that the counselappearingfor the Petitionerswas not diligentin defending the accused. The lav/ is well settled. Section 311 Cr.P.C. mandates the Court to recall a witness who is essential for the just decision of a case. There are to limbs to Section 311 Cr.P.C. Firstly, that the Court has the power at any stage of an enquiry, trial or other proceedings to summon any person as a witness and examine or re-examine or recall a witness already examined. The second limb states that the Court shall summon and examine or recall and re-examine any such person if his evidence appears to be essential to the just decision of a case. Cross- CRLM.C 1902/2011 page 4 of 7 examination of the injured and the Invesiigating Officer, the two most material witnesses in the trial is essential for the just decision of the case. The denial of this opportunity to the accused would be a denial of fair trial and, thus, infringement of his constitutional right under Article 21. The Hon'ble Supreme Court in Zahira Hahibidlah Sheikh and Another Vs. State ofGujarat and Others (2006) 3 SCC 374 held: 26. In this context, reference may be made to Section 311 of the Code which 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 v^^itness 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 section is manifestly in tv/o parts. Whereas the word used in the first part is "may", the second part uses "shall".. In consequences, the first part gives purely discretionaiy authority to a Criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon anyone as a witness, or (b) to examine any person present in Court, or (c) to recall and re-examine any person v/hose evidence has already been recorded. On the other hand, the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the Court the duty of CRLM.C 1902/2011 page 5 of 7 examining a material witness who would not be otherwise broughtbefore it. It is couchedin the widest possibleterms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised,or with regard to the manner in which it should be exercised. It is not only the prerogativebut also the plain duty of a Court to examinesuch of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Courtto arriveat the truthby all lawfulmeans andone of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. 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 sectionis not limited only for the benefit of the accused, and it will not be an improper exerciseof the powersof the Courtto summona 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 appliesto all proceedings,enquiriesand 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 significantexpressionthat 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 veiy v>?^ide 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 ofjudicial mind. 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 CRL.M.C 1902/2011 page 6 of 7 complainant,he should be allowed an opportunity to crossr examine.The right to cross-examinea 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 summonedby the Court could not be termed a witness of any particular party, the Court should give the right of cross- examinationto the complainant.These aspectswere highlighted in Jamatraj KewaljiGovaniv. State ofMaharashtra/' Thus, in view of the facts and circumstancesof the case, I deem it fit that the Petitioners should be given an opportunity to cross-examine PW-2 RamveerBodh @ SalmanandPW-10ASI SahabSinghsubjectto costs. It is therefore directed that the Petitioners will now appear before the Trial Court on 6^'' June, 2011 when the Learned Trial Court will summon PW-2 Ramveer Bodh Salman and PW-10 ASI Sahab Singh for being cross-examinedby the Petitioners subject to cost of Rs. 10,000/- to be depositedby the Petitionerswith the Delhi Legal ServicesAuthorityon or before6''^ June, 2011. Petition and application are disposed of. Order dasti. Copy of this orderbe alsocommunicatedto the I.eamed TrialCourt. 'ga' V iv/rTT"«;nrA MUKTA GUPTA,J JUNE 01, 2011 CRL.M. C. 1902/2011 page 7 of 7 1