IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M). No. 146 of 2009. Date of Decision: 12.8.2010. _______________________________________________ Durga Singh. ….Petitioner. Versus. Budhi Singh. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?yes. For the petitioner :Mr.G.D.Verma, Sr. Advocate with Mr. Romesh Verma, Advocate. For Respondent. :Ms.Ritta Goswami, Advocate. Dev Darshan Sud, J.(Oral). This petition has been preferred against the order passed by learned Judicial Magistrate, Anni wherein he moved an application under Section 311 of the Code of Criminal Procedure for re-calling the complainant and his witnesses for further cross-examination on the plea that earlier the petitioner-accused was represented by Sh. Diwan Singh, Advocate and the witnesses were cross-examined by Sh.Kuldip Singh, Advocate without properly examining the record and did not take any instructions from the petitioner. The averments made in the application are: “……………..2.That the applicant/accused had engaged initially Sh. Diwan Singh, Advocate to defend him in the case. The complainant herein this complaint, besides examining Whether reporters of the Local papers are allowed to see the judgment? yes. 2 himself produced his witnesses, an employee from the bank. On the last date of hearing, the applicant was examined U/S 313 Cr.P.C. on which date Sh. R.M.Gupta, Advocate appeared as vice counsel of Sh. Kuldip Singh, Advocate. 3. That the prosecution witnesses were cross-examined by Sh. Kuldip Singh, Advocate without brief of the case as the papers were with Sh. Diwan Singh, Advocate who did not appear. He did not cross-examine the witnesses properly and could not contradict them with the documentary evidence. This omitted to put material questions to them. Thus his case was materially prejudiced. No party in a trial can be foreclosed from correcting errors committed by the earlier counsel……………….” 2. Before adverting to the principles of law involved, I must express my anguish when I note that more often than not it is the counsel conducting the case in the court below who is being blamed for not presenting the case properly. This comes as a standard averment in the application(s) filed before this Court seeking relief either for recall of the witnesses, remand or other such relief(s) which would put the trial back. The danger in adjudicating such blame is that not only does it tarnish the professional image of the counsel conducting the case but if the averments are accepted on the face value, the court accepts the blame laid on the Advocate without in any manner giving him a chance of rebutting the allegations made against him which tarnishes his professional reputation and holds him guilty of professional misconduct. Though the Supreme Court has more than one occasion held that litigant should not suffer for the negligence of counsel but yet at the same time, rampant use of this reason cannot be encouraged without substantive proof direct or indirect. . 3 3. In this case again, the blame is being laid squarely on the counsel. However, without entering into that aspect at this stage, I deem it fit in the interest of justice to proceed with the matter further. 4. Learned counsel appearing for the respondent has resisted this petition on a number of grounds and also urges that the petitioner has the habit of unnecessarily prolonging the trial. 5. The provisions of Section 311 of the Code of Criminal Procedure were interpreted by the Supreme Court in Mohan Lal Shamji Soni Vs. Union of India, 1991 Supp (1) SCC 271, where the Court holds that the provision is in parimeteria with Section 540 of the old Code and that the power can be exercised at any stage by a court. It is the cardinal rule of law that the best available evidence should be brought before the Court to adjudicate the controversy before it in order to arrive at a just decision. This principle was later on reiterated by the Supreme Court in Zahira Habibullah Sheikh (5) and another Vs. State of Gujarat and others, (2006) 3 SCC 374. 6. In Mukunda Dev Baral Vs. Sanjib Baral and others, 1992 Cri.L.J.3048, the High Court of Orissa has held that even in a case instituted by the police, an application at the behest of the informant is maintainable. Construing the words “just decision of the case”, the Court holds: “5 For application of the provisions of S.311 it is to be considered whether evidence of the concerned witness is essential for a just decision in a case. Where the evidence of any person appears to the Court to be so, the Court may exercise its discretionary power in any of the three ways sanctioned in the first part of the section, i.e., (1) summon any person as witness; (ii) examine as witness any person present in Court though not summoned; (iii) recall and re-examine a witness who has already been examined. See AIR 1968 SC 178: (1968 Cri 4 LJ 231): Jamatraj V. State of Maharashtra. The test of just decision is not limited to something necessary in the interest of the accused only. It is equally applicable to the case of the prosecution. As observed by the Supreme Court in Jamatraj’s case (supra), where the Court is satisfied that the examination or re-examination of a witness is essential for a just decision of the case, its action cannot be challenged as excess of jurisdiction because it has been done after the defence has closed its case. That would be negation of fairplay and equity. In the instant case, merely because the manner of investigation was deficient, it cannot certainly be a ground for refusal of the prayer to recall a witness……………………….” (P 3049) 7. This Court in Narcotics Control Bureau Vs. Yuvraj Gurang and another, 2006, Cr.L.J. 2862, has reiterated these principles of law was reaffirmed in Prithvi Singh Vs. Randhir Singh and others, (2008) 17 SCC 654, Sarju Versus State of Uttar Pradesh, (2009) 13 SCC 698, Jagdish Chand versus Kartar Chand, Latest HLJ 2009 (HP) 912 and Gurdial Singh versus Laxmi Dhar, Latest HLJ 2009 (HP) 41. 8. In these circumstances, I have no doubt in my mind that the discretion exercised by the learned trial Court is not in accordance with law which finds reiteration in the precedent noticed above. In the absence of Counsel all that I need to say is that it is by now well settled that no party shall suffer on account of the negligence of his counsel. {See: Rafiq and another Vs. Munshilal and another, AIR 1981 SC 1400, Savithri Amma Seethamma Vs. Aratha Karthy and others, AIR 1983 SC 318 and Smt. Lachi Tewari and others Vs. Director of Land Records and others, AIR 1984 SC 41} 5 9. This Court in Manoj Pali Vs. Girish Dhingra 2009 (1) Shim.L.C. 170 has held: “14 A corollary of laches or mistakes during the conducting of a case by the Counsel who acted in an highly unprofessional manner cannot be understood as a lacuna which a Court cannot fill up which has caused the inherent weakness or latent wedge in the matrix of the defence case. Thus, no party in a trial can be foreclosed from correcting errors committed by the Advocate due to his misconduct. If proper evidence was not adduced or a relevant material was not brought on record due to his negligence, the Court is required to be magnanimous, in permitting such mistakes to be rectified. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.”(P 173). 10. I need not to say anything nor am I passing any ex-parte judgment on the counsel who conducted the case. This petition is accordingly allowed. The order passed by the learned trial Court foreclosing the right of re-summoning the witnesses is quashed and set aside. The learned trial Court shall proceed with the case afresh granting an opportunity to the petitioner to re-call the witnesses, as prayed for. Needless to say that the respondent herein shall have a right to rebut whatever evidence is brought on record by the petitioner. (Dev Darshan Sud) Judge. August 12, 2010.(R)