IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.3055 of 2010 ( O&M) Date of decision: 17.11.2010 Ranjit Singh ......Petitioner Vs. State of Punjab ...Respondent CORAM:- HON'BLE MRS.JUSTICE DAYA CHAUDHARY. PRESENT: Mr.B.S.Sidhu, Advocate, for the petitioner. **** ORDER This revision petition has been filed against order dated 10th November, 2010 passed by Special Judge, SAS Nagar (Mohali) vide which application filed under Section 311 Cr.P.C. for recalling of the prosecution witness has been dismissed. The petitioner filed an application under Section 311 Cr.P.C. for recalling of the prosecution witness namely, Harbans Singh Dhaliwal which has wrongly been dismissed without taking into consideration the contents of the application whereas the witness was necessary for just decision of the case. Learned counsel for the petitioner submits that the application filed by the petitioner has been dismissed by the trial Court only on the basis of technicalities and not on merits. Learned counsel for the petitioner further submits that recalling /re- examination of Harbans Singh Dhaliwal (PW-3) is essential to arrive at a just decision of the case to know whether Harabans Singh Criminal Revision No.3055 of 2010 [2] Dhaliwal was present at the time of raid or not and whether the mobile was used by him at the spot or not. Heard learned counsel for the petitioner and have also gone through the impugned order. As per case of the prosecution, petitioner Ranjit Singh was caught red handed while accepting bribe from complainant Pardeep Kumar as Harbans Singh Dhaliwal was joined as witness of recovery by the Investigating Officer. Harbans Singh Dhaliwal was examined by the prosecution to prove that the accused was caught read handed while accepting bribe from the complainant. He was thoroughly cross-examined by the defence counsel. In the defence evidence, the accused-petitioner had brought on record Mobile No. 98722 87722 belonging to Harbans Singh Dhaliwal in order to prove the call record of said mobile number on 30th September, 2008 when the alleged raid was conducted by the Vigilance Bureau. An application under Section 311 Cr.P.C. was moved by the petitioner on the ground that witness Harbans Singh Dhaliwal was to be confronted with the said record as when the raid was conducted, he was not present and re-examination of said witness is necessary for just decision of the case. It appears from the record that Harbans Singh Dhaliwal was cross-examined at length by the defence counsel and during his cross-examination, he was never questioned with regard to use of the mobile phone. Moreover, there is nothing on record to show that Harbans Singh Dhaliwal had ever claimed that he was having said mobile with him Criminal Revision No.3055 of 2010 [3] and by recalling Harbans Singh to know whether he was present at the time of raid, would be of no help to the petitioner. The mobile may be in the name of any person and can be used by any other person. Using of mobile cannot be a ground to show whether Harbans Singh was present at the time of raid or not. There is no dispute regarding powers of the Court as it can exercise powers under Section 311 Cr.P.C. to summon any witness at any time if it considers that summoning of witness is necessary for just decision of the case. Such powers are not to be exercised in a routine manner. In the present case, the petitioner has not made out any case before the trial Court as to how the recalling of Harbans Singh Dhaliwal was necessary for just decision of the case. The object and purpose of Section 311 Cr.P.C. is to avoid failure of justice on account of mistake or failure on the part of either party to the proceedings to bring any necessary and valuable evidence on record which is essential for just decision of the case. Although wide discretion has been given to the Court to summon, examine or to recall /re-examine any such witness if his evidence appears to the Court to be essential for just decision of the case. This power is not to be exercised by the Court to help the prosecution or to help the accused or not to fill up any gap in the prosecution evidence or to give any unfair advantage against the accused. This Court while considering the ambit and scope of Section 311 Cr.P.C. in case of Jagdish and another v. State of Haryana (Crl.Revision No. 2547 of 2009) decided on 25.9.2009, has Criminal Revision No.3055 of 2010 [4] held as follows: “ 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 of 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 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. Criminal Revision No.3055 of 2010 [5] 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.” Thereafter, this Court in the case of Dr.Gurpreet Kaur v. Appropriate Authority-cum- Senior Medical Officer, Incharge Sub-Division Hospital, Tehsil Phillaur (Jalandhar) being Crl.Misc.No. M-17027 of 2009 decided on 4.12.2009, has held as follows:- “ A perusal of the above provision shows that it is a discretion provided to the Court, where any inquiry, trial, or other proceedings under the Code is pending, the Court has been given wide powers to recall or re- examine any person already examined, if his evidence Criminal Revision No.3055 of 2010 [6] appears to the Court to be essential for the just decision of the case. The satisfaction is, therefore, of the Court, which has to decide the matter pending before it. The touch-stone for exercise of powers under Section 311 Cr.P.C. is the satisfaction of the Court that the evidence of any person, which comes to its notice, is essential for the just decision of the case. It can at that stage summon any person as witness, examine any person in attendance, though not summoned as a witness or recall or re-examine any person already examined. This power, under Section 311 Cr.P.C. can be exercised by the Court at any stage of any inquiry, trial, or other proceedings under the Code of Criminal Procedure. The intention of the Legislature is to empower and enable the Court to come to a correct finding and for that reason, the Court would be fully justified in permitting production of evidence whether documentary or oral, where the Court feels that the same is necessary for the just decision of the case and no fetters can be put in exercise of these powers in the Court. The cause of justice is paramount and no impediment has, therefore, been intentionally put on the Court by the Legislature to exercise the powers under Section 311 Cr.P.C.” In view of the settled positon of law and the facts of the Criminal Revision No.3055 of 2010 [7] present case, there is no merit in the contentions raised by the learned counsel for the petitioner and the revision petition being devoid of any merit is dismissed. (DAYA CHAUDHARY) JUDGE November 17, 2010. raghav