IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 2547 of 2009 (O/M). Date of Decision : September 25, 2009. Jagdish and another ...... Petitioners . Versus. State of Haryana. ..... Respondent . CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. R.S. Sihota, Senior Advocate, with Mr. B.R. Rana, Advocate, for the petitioners. AUGUSTINE GEORGE MASIH, J.. The present revision petition has been preferred by the petitioners, challenging the order dated 14.09.2009 (Annexure-P-1), vide which an application moved by the prosecution under Section 311 Cr.P.C. for summoning the records of Mobile No. 9810395757 of Airtel Network and Mobile No. 9811292221 of Vodafone Network, for the month of September, 2008, stands allowed and the records of the phone calls from Vodafone as well as Airtel as regards Mobile No.9811292221 and 9810395757 for the month of September, 2008 (1st to 30th September), have been summoned for 26.09.2009. Counsel for the petitioners contends that the application, which has been moved by the prosecution, cannot be allowed at this stage, when the prosecution has closed its evidence and thereafter, the defence evidence also stands concluded. He further contends that the prosecution case is based on suspicion and the petitioners have been falsely implicated in the case. The case of the prosecution is based on the statement of complainant Lalesh Crl. Revision NO. 2547 of 2009. Kumar (P.W.1) and Insha Ram (P.W.2). The complainant, as per the F.I.R., had received information on telephone from Harender son of Rajbir Singh and the said witness was not associated in the investigation and said Harender appeared as a defence witness (D.W.1). In his deposition, Harender (D.W.1) stated that the complainant had come to the liquor vend at about 11:30/11:45 P.M. on the same day i.e. 10.09.2008 on his call to the complainant on his mobile No. 9810395757. He further deposed that the complainant had knowledge and had seen deceased Lachhu Ram on 10.09.2008 itself. Whereas the case of the prosecution is that the complainant Lalesh Kumar s/o Bhole Ram received a telephone call on 11.09.2008 in the morning and on the basis of said information, got recorded F.I.R. No. 443 dated 11.09.2008, Police Station City Ballabgarh. Counsel for the petitioners on this basis submits that the prosecution cannot be allowed to fill up the lacuna at this belated stage and the power under Section 311 Cr.P.C. cannot be exercised to the dis-advantage of the accused, particularly when his defence has been closed. He relies upon the judgments of this Court in the cases of Santokh Singh Versus The State of Haryana, Vol. III 1975 C.L.R., 119, Didar Singh Versus The State of Punjab, Vol. V 1977 C.L.R., 60, and Mohinder Singh Versus The State of Punjab and another, Vol. VII, 1979 C.L.R., 94. Another submission, which is made by counsel for the petitioners is that the prosecution cannot be allowed to lead any evidence to dis-prove the stand taken by the accused during his evidence, which had been led by him before the Trial Court. He relies upon the judgment of Karnataka High Court in the case of State of Karnataka Versus Venugopal and others, 2004 (4) R.C.R. (Criminal), 5. His alternative submission is that -2- Crl. Revision NO. 2547 of 2009. even if the powers under Section 311 Cr.P.C. is wide enough, but the Trial Court cannot allow the production of documents, which are not per se admissible. For this contention he relies upon the judgment of this Court in the case of Pritam Singh Versus State of Punjab, 2002(3) R.C.R. (Criminal), 767. I have heard counsel for the petitioners and have gone through the records of the case. Section 311 Cr.P.C. 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 witness, or recall or 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 when read as reproduced above, clearly shows that this provision gives ample powers to the Court to recall, summon, or re- examine any person in evidence, if it appears to be essential to the just decision of the case. The powers of the Court are wide enough to exercise its discretion depending upon the facts and circumstances of each case and it is to the satisfaction of the Court and to see that cause of justice should not suffer. The primary aim and object of this Section is to do justice between the parties. If the Court comes to a conclusion that the production of such evidence, which has been sought to be produced taking recourse to Section 311 Cr.P.C., would enable the Court to come to a correct finding, it would be just and reasonable and the Court would be fully justified in permitting -3- Crl. Revision NO. 2547 of 2009. the evidence to be produced under this Section. This section does not distinguish and rather allows production of evidence whether documentary or oral, which the Court feels is necessary for the just decision of the case and no fetters and impediments can be put in exercise of these powers, which has been conferred by the Legislature on the Trial Court. The Court cannot dilute the statutory powers conferred upon the Trial Court, when the Legislature did not intend to do so. Justice should not be the sufferer. The purpose and intent of the trial is to find out the truth and the truth alone should prevail and in its quest to find out and to reach the truth, the Trial Court has been saddled with powers to make all efforts to reach a correct conclusion, which is the truth. No doubt, in the said process, the interest of the parties has to be taken care of, but that does not mean that justice should be the casualty. The rights have been conferred under the statute both on the prosecution as well as the accused and when the statute confers certain powers upon the Court, which is primarily in the nature of doing justice and for that it is the satisfaction of the Court as to the essentiality of the evidence, sought to be produced by the parties for the just decision of the case, the same is depending upon the facts of each case. A perusal of the impugned order, clearly spells out the factual aspect of the case. As per the prosecution, a telephone call was received by the complainant Lalesh Kumar from Harender s/o Rajbir with regard to death of deceased Lachhu Ram. Lalesh Kumar stated that he had received a telephone call on 11.09.2008 in the morning and on the basis of the said information had got lodged the F.I.R. Lalesh Kumar, while appearing as P.W.1 stated that he got information from Harender on 11.09.2008 about the death of Lachhu Ram. In his cross-examination, no suggestion was put to -4- Crl. Revision NO. 2547 of 2009. him that he had not received call from Harender on 11.09.2008, but had received the same on 10.09.2008. Thus, the factum of receipt of call from Harender on 11.09.2008 by the complainant Lalesh Kumar stood admitted by the defence. However, Harender s/o Rajbir appeared as defence witness (D.W.1) and stated that he had made a call to the complainant Lalesh Kumar on 10.09.2008. It is at this stage for the first time that the date of receipt of phone call from Harender by Lalesh Kumar (complainant) was disputed. The truth had to be seen and for that production of telephone call details, as per Trial Court, was essential for the just decision of the case. The Trial Court came to a conclusion that the evidence, which is sought to be produced by the prosecution and the records which are being summoned through an application, moved under Section 311 Cr.P.C., are essential for the just decision of the case and, therefore, has allowed the application of the prosecution. In the given facts and circumstances of the case, the decision arrived at by the Trial Court is fully justified and the interest of justice would be served by such production of evidence, which appears to be essential for the just decision of the case, so that true facts come to light. No illegality has been committed by the Trial Court, while allowing the application of prosecution under Section 311 Cr.P.C., vide order dated 14.09.2009 (impugned herein). The judgments relied upon by counsel for the petitioners i.e. Santokh Singh (supra), Didar Singh (supra), and Mohinder Singh (supra), were all cases, which were decided by this Court in the peculiar facts and circumstances of those cases, where the Court has come to a conclusion that the prosecution should not be allowed to fill up the lacunae in its case. However, in those judgments, as well, this Court has acknowledged the legal -5- Crl. Revision NO. 2547 of 2009. position that powers under Section 311 Cr.P.C. are very wide and is dependent upon the facts of each case. In the case of State of Karnataka (supra), the Trial Court had come to a clear conclusion that the evidence, which was being sought to be produced by the prosecution, was such where the possibility of tampering with the same was possible, and, therefore, did not approve the exercise of powers by the Trial Court under Section 311 Cr.P.C. In the case of Pritam Singh (supra), this Court has clearly held that Section 311 Cr.P.C. gives ample powers to allow documentary or oral evidence, where the Court feels the same to be necessary for the just decision of the case. No fetters can be said to be exercised in those powers. The case in hand was one where the documents sought to be produced by the prosecution were orders of the Court, copies of the revenue record, which had been allowed to be produced by exercising the power of Section 311 Cr.P.C. The exercise of power under Section 311 Cr.P.C. by the Magistrate was challenged on the ground that the same was not permissible under the law. This Court in the case of Pritam Singh (supra) in paras 8 and 9 has held as follow :- “8. There is hardly any merit in the submission made. Summoning of a witness to produce these documents and then get these proved would not only entail delay when documents are per se admissible and can be tendered in evidence without formal proof but would also incur unnecessary expense for the party whose prayer is allowed to produce the evidence in terms of the power vested in the Court. If the construction put by the counsel for the petitioner-accused is accepted that would be doing violence to the provision of Section 311 of the Code which has been engrafted by the Parliament for advancement of the criminal justice system. Section 311 of the Code should not be construed in such a manner which would render these -6- Crl. Revision NO. 2547 of 2009. provisions as non-workable in a situation like the present one. The construction to these provisions should be put in such a manner which would advance the cause of justice and not defeat it. It is for that reason the Courts have taken into consideration that where the language of the statute leads to manifest contradiction in the purpose of the enactment, the Court would adopt a construction which would carry out the intention of the Legislature. In doing so as Denning, L.J., had said, “a Judge must not alter the material of which the Act is woven but he can and should iron out the creases. 9. In order to prevent manifest injustice being caused on account of non-production of material evidence in the trial of the case even the Appellate Court has been vested with the power to produce additional evidence in appeal during the pendency of the appeal under Section 391 of the Code. The provisions of Section 391 of the Code is prima facie not limited by any consideration save that the appellate court should be of the opinion that additional evidence is necessary and for doing so it is required to record reasons. The intention of the Legislature to empower the Appellate Court to permit production of additional evidence appears to be that cause of justice should not suffer and production of such evidence would enable the Court to come to a correct finding and for that reason it would be justified in permitting the additional evidence under these provisions. Therefore, provisions of Section 311 of the Code have given ample powers to the Court to allow production of the evidence whether documentary or oral which is per se admissible without formal proof where the Court feels the same to be necessary for the just decision of the case and no fetters can be put in exercise of those powers as sought to be contended by the counsel for the petitioner.” -7- Crl. Revision NO. 2547 of 2009. In view of the above and in view of the facts and circumstances of the present case, there is no merit in the present revision petition and the same is, therefore, dismissed. (AUGUSTINE GEORGE MASIH) JUDGE September 25, 2009. sjks. Whether referred to the Reporter : ________ -8-