CRM No. M-1835 of 2011 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CRM No. M-1835 of 2011 (O&M) Date of Decision : .02.2011 Tarjinder Kumar Sarpanch .......... petitioner Versus State of Punjab ...... Respondent CORAM : HON'BLE Ms. JUSTICE RITU BAHRI Present : Mr.J.B.S. Gill, Advocate for the petitioner. **** RITU BAHRI, J. Present petition has been filed under Section 482 Cr.P.C. for quashing impugned order dated 16.10.2010, passed by the Judicial Magistrate Ist Class, Hoshiarpur, rejecting the application of the prosecution under Section 311 Cr.P.C. The petitioner was Sarpanch of the village Kadiana, District Hoshiarpur and got registered a case under Sections 447, 427, 148, 149 IPC vide FIR No. 16 dated 8.10.2006, police Station Bullowal, District Hoshiarpur against Mohan Singh and his co-accused. After investigation, the challan was presented against Mohan Singh and the co-accused on 28.11.2006. CRM No. M-1835 of 2011 -2- Charges were farmed against them on 8.2.2007. The prosecution examined eight witnesses in all. All were cross- examined except PW-4 Mohan Singh and PW-8 Tarjinder Kumar. The prosecution evidence was closed on 6.9.2010. An application under Section 311 Cr.P.C. was filed on 27.9.2010 and the same was rejected vide impugned order dated 16.10.2010. Mr. J.B.S. Gill, learned counsel for the petitioner has argued that examination-in-chief of PW-4 Mohan Singh was recorded on 25.11.2009 and examination-in-chief of PW- 8 Tarjinder Kumar was recorded on 18.12.2009. They supported the prosecution version, but their cross-examination was deferred by the defence counsel. Ten persons were facing trial after framing of charge. Three accused namely Bua Singh, Pardeep Singh and Sukhwinder Singh alias Sukhi were declared as proclaimed offender. The dispute relates to construction of a room and a samadh over the Panchayat land by accused Mohan Singh. The village panchayat got constructed a wall in front of samadh in the month of May, 2006. Mohan Singh accused started objecting this construction. The said wall was constructed by the Panchayat with the help of police and SDM Hoshiarpur. Accused Mohan Singh along with his co-accused forcibly demolished the said wall. Thereafter a case under Sections 447, 427, 148, 149 IPC vide FIR No. 16 dated 8.10.2006, police Station Bullowal, District Hoshiarpur against Mohan Singh and his co-accused, CRM No. M-1835 of 2011 -3- was registered. The entire prosecution case is based on the statements of PW-4 Mohan Singh and PW-8 Tarjinder Kumar. Mr. J.B.S. Gill, learned counsel for the petitioner has referred to the zimini orders Annexure P-3 to contend that the prosecution had not delayed the pendency of the trial and ends of justice would meet if one more opportunity is granted to the accused to cross-examine PW-4 Mohan Singh and PW- 8 Tarjinder Kumar. After going through the facts of the case, there seems to be no deliberate attempt to delay the proceedings in the trial by the prosecution. The dispute in this case relates to construction of a room and a samadh over the Panchayat land by accused Mohan Singh. The village panchayat got constructed a wall in front of samadh in the month of May, 2006. Mohan Singh accused started objecting this construction. The said wall was constructed by the Panchayat with the help of police and SDM Hoshiarpur. Three accused have already been declared as proclaimed offender as they have not faced the trial. In order to appreciate the controversy, it would be necessary to make a reference to Section 311 Cr.P.C., which reads as under :- “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 CRM No. M-1835 of 2011 -4- 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.” The aforementioned provision has been subject matter of consideration of the Hon'ble Supreme Court in the case of Mohanlal Shamji Soni v. Union of India, 1991(3) RCR(Crl.) 182 (SC) : 1991 Supp (1) SCC 271. It has been held that Section 311 Cr.P.C. (Section 540 of the old Code) is manifestly in two parts as the use of word 'may' in the first part and that of 'shall' in the subsequent part makes it evident. The second part is mandatory. The observations of their Lordships in that regard read as under :- “7. ........This section is manifestly in two parts. Whereas the word used in the first part is 'may' the word used in the second part is 'shall'. In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Code and enables it at any stage of enquiry, trial other proceedings under the Code to act in one of the three ways, namely, (1) to summon any person as a witness, or (2) to examine any person in attendance, though not summoned as a witness, or CRM No. M-1835 of 2011 -5- (3) to recall and re-examine any person already examined. 8. The second part which is mandatory imposes an obligation on the Court - (1) to summon and examine, or (2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 9. The very usage of the words such as 'any Court', 'at any stage', or 'of any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice requires and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the Section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case. 10. xx xx xx xx 11. xx xx xx xx 12. xx xx xx xx 13. xx xx xx xx CRM No. M-1835 of 2011 -6- 14. xx xx xx xx 15. xx xx xx xx 16. The second part of Section 540 as pointed out albeit imposes upon the Court an obligation of summoning or recalling and re-examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any party to the proceedings points out the desirability of some evidence being taken, then the Court has to exercise its power under this provision – either discretionary or mandatory – depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice.” The object of invoking the power under Section 311 Cr.P.C. is of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and the same should not be used for filling up the lacuna left by the prosecution or by defence to the disadvantage of the case. This power can be used any time before the pronouncement of the order. This view taken by the Hon'ble Supreme Court in Mohanlal Shamji Soni's case (supra) has been followed in the case of Rajendra Prasad v. Narcotic Cell, 1999(3) RCR CRM No. M-1835 of 2011 -7- (Crl.) 440(SC) : (1999) 6 SCC 110. In the present case, the accused could not cross- examine PW-4 Mohan Singh and PW-8 Tarjinder Kumar. The appropriate application under Section 311 Cr.P.C. has been moved on 27.9.2010. In view of the aforementioned facts, there is no delay on the part of the prosecution. Consequently, the criminal miscellaneous is allowed, the impugned order dated 16.10.2010 is quashed and the learned trial Court is directed to recall PW-4 Mohan Singh and PW-8 Tarjinder Kumar for cross-examination by the accused. .02.2011 (RITU BAHRI) 'sp JUDGE