CRR No. 41 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRR No. 41 of 2011 Date of decision: 07.01.2011 Manoj Kumar etc. ........ Petitioners Versus State of Haryana .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Rahul Rathore, Advocate for the petitioners -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. This is a revision petition against the order dated 06.12.2010 passed by learned Sessions Judge, Karnal, vide which, Roopwanti, mother of deceased Mukesh has been ordered to be examined as a Court witness. While challenging the said order, learned counsel for the petitioners submitted that in the FIR, there is no mention of the presence of Roopwanti mother of deceased. Statement of witnesses under section 161 Cr.P.C. were recorded. No one has mentioned the presence of Roopwanti. The police as cited as many as 20 prosecution witnesses. Roopwanti was not named in the said list of witnesses. Thus, she was stranger to the proceedings and is not connected with the present case. It is further stated that even brother of the deceased Subhash who was a witness to the CRR No. 41 of 2011 2 recovery and identified the accused persons has not stated the presence of Roopwanti. Thus, the trial court had wrongly summoned the mother of deceased as a Court witness without there being any necessity. It was also stated that the same has caused unfair advantage and the witness has been called only to fill the lacuna. Reliance has been placed on the judgment rendered in the cases of Harnam Singh v. M/s Bhushan Metallics Ltd. reported as 2007(1) RCR (Criminal) 992, Ramamoorthy v. The State reported as 1999 Cri LJ 4444, Hari Singh v State of Haryana reported as 2002 (2) RCR (Criminal) 316, Tripurari Mohan Prasad v. Union of India and others reported as 2006 Cri LJ 774 and Kewal Gupta v State of H.P. reported as 1991 Cri LJ 400. Learned counsel was heard at length. In the present case, Roopwanti is the mother of deceased Mukesh. The Judicial Magistrate has specifically noted that Roopwanti was attending the Court on each and every date of hearing. It is further noticed by the Court that right from the beginning, she had been telling the Court that her statement was recorded by Lalit Singh, Police Wala. She had also signed her statement but later on Lalit Singh had torn off her statement and did not keep her as witness in this case,whereas, she intends to depose as witness and her statement may be recorded in the Court. Accordingly, Roopwanti was called as a Court witness. With respect to the argument that there is no evidence that the said incident was ever witnessed by the lady, the Sessions Judge has specifically dealt with the said argument and held that no finding can be recorded on this point till such a time, her statement is recorded. Her regular presence in the Court on almost each and every date of hearing, her CRR No. 41 of 2011 3 continuously pleading and praying before the Court that her statement should be recorded and further that her statement was recorded but the same was torn off by the police official, it was the duty of the Court to examine the said witness for arriving at a just and proper decision which the Court has rightly allowed in the present case. The additional witness is of non-else but the mother of the deceased. Roopwanti is definitely not stranger to the case. She is the mother of the deceased. She has been regularly appearing in the Court. It has been specifically noticed by the trial Court that her statement was recorded but was subsequently torn off. Thus, her pleading before the Court that her name was purposely kept out of the list of witness cannot be ruled out. As such, recording of her statement at this stage is just and proper for the decision and to arrive at truth. Learned counsel further referred to the judgment rendered in the case of Harnam Singh's (supra). The said judgment does not held the petitioners in as much as the facts were totally different. In the facts of that case, first application was moved by complainant before the trial court after appellant had produced his document showing that appellant did not owe any debt to the complainant and rather he was a debtor of the appellant. Second application was moved by the complainant before appellate court itself when the court had heard arguments of the counsel for the appellant which was aimed at filling up the lacuna in the prosecution evidence which were pointed out during the course of arguments by the counsel for appellant. Then came the third application which was stated to be nothing but to an attempt to fill up the lacunas in the case of the prosecution. Accordingly, the application to lead additional evidence on that stage was refused. It was in those circumstances, the Court came to the conclusion that CRR No. 41 of 2011 4 the application under Section 311 Cr.P.C was nothing but a delaying tactic. Judgment rendered in the case of Hari Singh's case (supra) as relied upon by the learned counsel also does not help the petitioner as the same was rejected on account fact that the said application was moved after a gap of seven years during the course of which opportunities, times without number, were given to the prosecution to exhaust all the evidence on its behalf which gave the impression that it was nothing but a dilatory tactics of the prosecution. Judgment rendered in the case of Tripurari Mohan Prasad v. Union of India and others reported as 2006 Cri LJ 774 as relied upon by the learned counsel also does not help the petitioner. In that case, the application was moved by the accused to examine the officers of the CBI as defence witness. It was not made clear as to why they should be examined and how the petitioner will be prejudice if they are not examined as defence witness. No cogent reason was pointed out. As such, the application was declined. Judgment relied upon by the learned counsel in Ramamoorthy's case (supra), in fact, supports the case of the prosecution rather than the petitioner. While relying on the judgment of the Apex Court in the cases of Jamatraj v. State of Maharashtra, 1968 Cri LJ 231 as well as Mohan Lal Shamji Soni v. Union of India, 1991 Mad LW (Cri) 284, the single Bench of the Madras High Court while discussing Section 311 Cr.P.C., held that :- “6. So far as the first part of this Section is concerned, the Court has discretion to examine a witness as Court witness. It is settled that the discretionary power should be exercised judicious with circumspection and it should CRR No. 41 of 2011 5 be exercised as a reasonable and prudent person. The powers given to the Court under section 311 Cr.P.C being discretionary, the Court cannot be forced to exercise them at the bidding of any of the parties. As far as summoning of Court witness is concerned, it is entirely a matter for the Court to decide and it is not for the accused to insist upon. It is even open to the accused to summon the witness in his defence, if so advised. The object of the first part of section (is) fair trial. 7. So far as the second part of the section is concerned, it does not allow any such discretion but it binds and compels the Court to take any of the aforementioned two steps, if the fresh evidence to be adduced is essential to the just decision of the case. In other words, it becomes the duty of the Judicial Magistrate to examine witness for a just decision in the case. The object of this part of the section is to arrive at a just decision. In Mohanlal Shamji Soni v. Union of India, 1991 Mad Lw (Cri) 284: (1991 Cri LJ 1521), the Apex Court have held as under:- It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and 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 sides. None the less if either of the parties withholds any evidence which could be produced and which, if produced, would be unfavourable to the party withholding such CRR No. 41 of 2011 6 evidence, the Court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the Presiding Officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost, or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principles that a Court must discharge its statutory functions- whether discretionary or obligatory according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. 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 (section 311 of the new Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of inquiry, trial or other proceedings can summon any person as a witness or 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.” In the present case, trial Court came to the conclusion that the examination of Roopwanti as a Court witness was necessary. She has been summoned as a Court witness and not on the asking of any particular CRR No. 41 of 2011 7 parties. Judgment rendered in Kewal Gupta's case, which is cited by the learned counsel himself, in fact also supports the prosecution and answers the argument raised by the learned counsel. In the said case, it was held as under:- “7. These witnesses have been shown to be eye witnesses of the occurrence. Normally, the prosecution must associate and examine all the eye witnesses but where it has failed to examine any one or none, the Court can, in the interest of justice, examine such witnesses under this section. The contention of the learned counsel for the accused that only those witnesses can be examined whose statements have been recorded by the police under section 161 of the Code of Criminal Procedure and find mention in the list of witnesses submitted with the challan under section 173 of the Code, if accepted, will render the provisions of Section 311 of the Code of Criminal Procedure nugatory. These provisions namely Sections 161, 173 and 311 of the Code of Criminal Procedure have got different object, scope and operate in different spheres. The contention of the learned counsel for the accused is therefore completely divorced from the object, scope, tenor and spirit of these provisions, hence liable to be rejected. In the present case, as already stated above, Roopwanti is a Court witness. She is the mother of the deceased. It has specifically been mentioned in the impugned order that she has been attending the court on each and every date of hearing. She had been telling the Court that her statement was recorded which was subsequently torn off by a Police wala. She wished to depose as witness. In fact, she has stated before the Court CRR No. 41 of 2011 8 that she was present at the time of occurrence. Thus, the fact that her name was specifically left out of the list of witnesses cannot be ruled out. Section 311 of the Code gives wide power to the Court to summon any person as witness. It is the duty of the Court to summon any of the person as a Court witness in case such a person is necessary for proper and just adjudication and in order to establish the truth. Since the Court exercised its power to summon Roopwanti as a Court witness by considering that she was a necessary witness being the mother of the deceased, the said action cannot be open to review and the same cannot be said to be exceeding its jurisdiction. The same rather is a outcome of the exigency of the situation, fair play and good sense. Accordingly, the present petition is dismissed being devoid of merit. (Nirmaljit Kaur) Judge 07.01.2011 mohan