Criminal Revision No.1642 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Cr.Revision No.1642 of 2009 (O&M) DATE OF DECISION : 26.7.2011 Fazru PETITIONER VERSUS State of Haryana and others RESPONDENTS CORAM : HON'BLE MR.JUSTICE MAHESH GROVER Present:- Shri Safraj Hussain, Advocate for the petitioner. Shri Sandeep Mann, Senior D.A.G. Haryana. Shri Ashok Kanwar, Advocate for the complainant. MAHESH GROVER, J. This petition is directed against the order dated 14.5.2009 by which an application moved by the prosecution under Section 311 of the Cr.P.C. was declined and the evidence was closed. The petition has been filed by the complainant whose grievance is that, it is because of the fault of the prosecution who failed to adduce the necessary evidence despite the fact that the Court had granted indulgence since the year 2002 for the said purpose. He referred to the impugned order and stated that the evidence commenced on 9.1.2002 and numerous opportunities were granted to the prosecution, but they failed to Criminal Revision No.1642 of 2009 -2- conclude their evidence. He states that because of the fault of the prosecution, acute prejudice has been caused to him. The facts of the case reveal not only apathy on the part of the prosecution, but also indicate a hint of involvement and collusion between the prosecution and the accused persons. So much so, that the State did not even choose to challenge the order passed on 14.5.2009 vide which the evidence of the prosecution was closed. Upon noticing the above facts, this Court had taken notice of the lapse and sought a report from the Advocate General, Haryana, Director Prosecution, Haryana and the District Attorney, Palwal who were directed to explain as to how they persisted with the acts of omission so as to result in undue advantage to the accused persons and frustrated the lawful process. In response thereto, a reply has been submitted wherein it has been stated that an enquiry has been conducted against the erring officials and they have been charge-sheeted for dereliction of duty. The Court would like to see that such proceedings are taken to their logical end and report be submitted to this Court. The concern of the Court emanates from an attempt being made by the prosecution to scuttle the case of the complainant which is evident from the facts of the case. The Court also perceives this to be an attempt to be obstructive to the course of justice. Therefore, the Advocate General, Haryana shall submit a report regarding the progress of the enquiry initiated against the erring officials which enquiry/proceedings shall be concluded positively within six months from today. In so far as the impugned order is concerned, although the Court was justified to close the evidence of the prosecution, noticing the sheer amount of indulgence it had granted to them, but for the reasons which have been mentioned above and for the reason that it has been noticed by the Court that there is a hint of suspicion of collusion inter-se between the prosecution and the accused, I am of Criminal Revision No.1642 of 2009 -3- the opinion that the impugned order deserves to be set aside, not only for the reasons which have been expressed in the fore-going paragraphs, but also for the reason that Section 311 of the Cr.P.C. is an enabling provision which empowers the Court to permit any evidence to come on record at any stage of the trial or the proceedings, if it appears to the Court that it will help in a proper adjudication of the matter. In the impugned order, no such opinion has been expressed by the Court. Section 311 of the Cr.P.C. is extracted here below :- “311. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceedings 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 be essential to the just decision of the case.” The Hon'ble Supreme Court in Zahira Habibulla H.Sheikh and another v. State of Gujarat and others 2004 SCC(Crl.) 999 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. Criminal Revision No.1642 of 2009 -4- In Mohanlal v. Union of India this Court has observed, while considering the scope and ambit of Section 311, that the very 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 produce 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. Criminal Revision No.1642 of 2009 -5- Section 311 of the Code does not confer any 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 Hon'ble Supreme Court in Zahira Habibullah Sheikh (5) and another v. 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 v. State of Criminal Revision No.1642 of 2009 -6- Maharashtra.” For the afore-stated reasons, the impugned order is set aside and the matter is remitted back to the learned trial Court to examine the contents of the application under Section 311 Cr.P.C. and pass an order afresh after keeping in view the true intent and import of the provisions of Section 311 Cr.P.C. and also keeping in view the observations which have been made above. The revision petition stands disposed of. (MAHESH GROVER) July 26, 2011 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO