S.B. Criminal Revision Petition No. 776/2010 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER Hitesh Kumar Sharma Versus State of Rajasthan S.B. CRIMINAL REVISION PETITION NO. 776/2010 Date of Judgment : 30.11.2010 PRESENT HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. Kulwant Singh for the petitioner Mr. Anil Upadhyay – Public Prosecutor BY THE COURT Challenge in this revision petition is made to the order passed by the learned Additional District and Sessions Judge (Fast Track) No. 1, Hanumangarh in Sessions Case No. 15/2009, by which the learned trial court allowed the application of the prosecution under Section 311 CrPC for resummoning the prosecution witness P.W.12 M.A. Jedi. The background facts need to be noted in brief are as under. Petitioner is facing a trial for offence under Section 304-B and 306 IPC. The evidence of P.W.12 M.A. Jedi was recorded on 01.05.2005 and 11.06.2008. After completion of Page 1 of 7 S.B. Criminal Revision Petition No. 776/2010 the trial, the matter was fixed for final arguments. During the course of the arguments, learned Public Prosecutor submitted an application under Section 311 CrPC to resummon the witness P.W.12 M.A. Jedi to prove certain facts which remained unproved during earlier examination of the said witness. The learned trial court allowed that application as indicated above. Learned counsel for the petitioner contended that the order of the learned trial court cannot be maintained because no reason has been assigned to pass the impugned order. Moreover, it amounts to fill up the gaps of the prosecution evidence. Learned counsel for the petitioner also submitted that no such order can be passed in terms of Section 311 CrPC. Learned Public Prosecutor, however, submitted that this is a case in which order of the trial court cannot be faulted. Learned counsel for the petitioner has relied upon the following authorities :- (i) 2008 SAR (Criminal) 964 Supreme Court, Hanuman Ram Versus State of Rajasthan & Ors. (ii) 2009(2) Cr.L.r. (Raj.) 978, Vinod Kumar Singh Versus State of Rajasthan Page 2 of 7 S.B. Criminal Revision Petition No. 776/2010 So far as the conceptual principles are concerned, the matter is not res integra. The Hon'ble Apex Court in the case of Rama Paswan & Ors. Versus State of Jharkhand reported in (2007) 11 SCC 191 has settled the above principle as follows :- “8. The scope and ambit of Section 311 of the Code, which reads as follows, needs to be noted: "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 a 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." 9. “26. ... The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequence, the first part gives purely discretionary authority to a criminal court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon anyone as a witness, or (b) to examine any person present in the court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances Page 3 of 7 S.B. Criminal Revision Petition No. 776/2010 imposing on the court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. 27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind. Page 4 of 7 S.B. Criminal Revision Petition No. 776/2010 28. As indicated above, the section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court. Sections 60, 64 and 91 of the Evidence Act, 1872 (in short 'the Evidence Act') are based on this rule. The court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge. 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.” Page 5 of 7 S.B. Criminal Revision Petition No. 776/2010 The facts of the authorities cited by the learned counsel for the petitioner are different from that of the present case. The power under Section 311 CrPC can be exercised by the trial court at any stage before pronouncing of the judgment and it is burdened duty of a court to call a witness where such evidence appears to be essential for just decision of the case. No universal principle can be laid down in this regard and it depends upon the facts and circumstances of each case as to which evidence can be termed as essential for just decision of the case. In the instant matter, P.W.12 M.A. Jedi allegedly seized a small bottle and an envelope containing some powder, which was smelling like pesticide. A memo was also prepared. All these articles were sent for chemical examination to the Forensic Science Laboratory with forwarding letter. During the evidence stage, P.W.12 M.A. Jedi was not examined on these aspects which may be of material nature. Hence, the prosecution requested to call Mr. M.A. Jedi under Section 311 CrPC and the said application was accepted vide the impugned order. This part of the story is integral part of the prosecution version and may have definite bearing on the point in issue. Page 6 of 7 S.B. Criminal Revision Petition No. 776/2010 The purpose of Section 311 CrPC is not to favour or disfavour the prosecution or the accused, but naturally to elicit and to get unfolded the truth. There is no possibility of fabrication in this case at this stage, rather some document of material nature, which are on record, have remained unexhibited. Whether these steps were really taken or not in a proper manner is a vital question, hence, the evidence in this regard can be termed as essential for just decision of the case. This will help the trial court in reaching to the right conclusion. Even otherwise the revisional court cannot substitute its discretion simply because otherwise other view may also be possible. It cannot be said by any strength of imagination that the trial court had no power under Section 311 CrPC to call or recall a witness. Similarly, it cannot be said that any material irregularity has been committed while exercising such power. It is not a case of filling up lacunas. Viewed from any angle, no interference in the impugned order is called for and for the said reason, the revision petition deserves to be dismissed at the admission stage itself. In the net result, the revision petition stands dismissed at the admission stage itself. [KAILASH CHANDRA JOSHI],J. Pramod Page 7 of 7