Crl. Misc. No. M-23552 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-23552 of 2010 (O&M) Decided on : 10-08-2011 M/s Nu-Tech Diary Engineer Pvt. Ltd. ....Petitioner VERSUS M/s Kashmir Jam Industries ....Respondent CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Deepak Gupta, Advocate for the petitioner None for the respondent MAHESH GROVER, J This petition is directed against the order dated 15.7.2010 vide which the prayer made by the petitioner who is the complainant before the said Court, for invoking its power under Section 311 Cr.P.C has been declined. The petitioner has initiated a complaint against the petitioner under Negotiable Instruments Act in the year 2007. After his evidence had been closed on 26.4.2010, he moved an application in June, 2010 when the matter was fixed for recording the evidence of the respondent who is defending the accusations against him. The said application has been declined only on the ground that it was filed belatedly and the documents which were sought to be produced were well within his knowledge and therefore the Court drew an inference that it is an attempt to delay the proceedings. No one has put in appearance on behalf of the respondent despite the fact that it has been served. Crl. Misc. No. M-23552 of 2010 (O&M) 2 On due consideration of the matter, I am of the considered opinion that provisions of Section 311 Cr.P.C confer wide discretion upon the Court to exercise such a power upon the same being invoked by a party before it, subject, however to its satisfaction that the same is necessary for the just decision of the case. Section 311 Cr.P.C is extracted herebelow:- “Section 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 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.” Hon'ble Supreme Court in Zahira Habibulla H. Sheikh and another Vs. State of Gujarat and others 2004 SCC (Crl.) 999 wherein it has observed as under:- “44. The power of the Court under Section 165 of the Evidence Act is in a way complimentary to its power under Section 311 of the Code. The Section consists of two parts i.e: (i) giving a discretion to the Court to examine the witness at any stage, and (ii) the mandatory portion which compels the Court to examine a witness if his discretion given to the Court is very wide, the very width requires a corresponding caution. In Mohanlal Vs. Union of India this Court has observed, while considering the scope and ambit of Section 311, that the very Crl. Misc. No. M-23552 of 2010 (O&M) 3 usage of the words such as “any Court”, “at any stage” , or “any enquiry or trial or other proceedings”, “any person” and “any such person” clearly spells out that the Section has expressed in the widest possible terms and do not limit the discretion of the court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the Section does not allow any discretion but obligates and binds the Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case, “essential” to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produced some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth. 46. Ultimately, as noted above, ad nauseam the duty of the court is to arrive at the truth and subserve the ends of justice. Section 311 of the Code does not confer on any Crl. Misc. No. M-23552 of 2010 (O&M) 4 party any right to examine, cross-examine and re-examine any witness. This is a power given to the court not to be merely exercised at the bidding of any one party/person but the powers conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice. Recourse may be had by courts to power under this Section only for the purpose of discovering relevant facts or obtaining proper proof of such facts as are necessary to arrive at a just decision in the case.” Similarly, the Apex Court in Zahira Habibullah Sheikh (5) and another Vs. State of Gujarat and others (2006) 2 SCC (Crl.) 8 observed as follows:- “29. The object of 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 the Court gives evidence against the complainant, he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a court arises not under the provisions 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 summoned by the Court could not be termed a witness of any particular party, the Court should give the right of cross examination to the complainant. These aspects were highlighted in Jamatraj Kewalji Govani Vs. State of Maharashtra.” Crl. Misc. No. M-23552 of 2010 (O&M) 5 For the aforesaid reasons, I am of the considered opinion that the learned Trial Court has not addressed itself appropriately to see whether the ingredients of Section 311 Cr.P.C were satisfied in the given set of circumstances or not. Merely because the application has been filed belatedly could not be a ground to decline the exercise of the power under Section 311 Cr.P.C unless the Court examines the proposed material to ensure whether such a material is necessary for the just decision of the case or not and without recording subjective satisfaction to this effect, it would be erroneous for a Court to conclude against the exercise of this power so invoked. Consequently, the instant petition is accepted and the matter is remitted back to the learned Trial Court to examine the matter afresh and decide the same in accordance with law. August 10, 2011 (Mahesh Grover) rekha Judge