89 4 CrleReN0371of2009 nle J IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARHe CrleReNoe371of2009 Dateof Decision January18 2010 AkramKhan Petitioner 1 V Stateof Punjab 0 C I CORAM2 HONBLE MRJUSTICE RAM CHAND GUPTA 0 Present MrRSAhluwalia Advocate for the Z MrGaurav GargDhuriwalaAAG Punjab eeeee X RAM CILAND GUPTA Je olj C The presentrevisiolletition has been filed by Akram Khan 3 son of Akhtar Khan residentof Mithapur Chowk Jalandhar Z order dated 5 2009 Annexure Pl passedby the Court of Additional SessionsJudgeJalandhar 111FIR Nol28 dated279006 Police Station Division No3 Jalandhar under Section 302 376 IPC vide which for additionalevidencefiled under Section 311 of the Codeof Criminal Procedure to be referred as CrPCI by the Ilirosecution was allowed The present 1S facingtrial before the Additional SessionsJudgeJalandhar on the brief that on the nightof 2692006 and 2792006 lIl the area of Mithapurhe committedrape upon a mmor girl agedabout 11 years and thereafter committedher murderby I have heard learned counsel for the partiesand have gone through the whole recordcarefully Gupta Suruchi 2013.03.21 12: 36 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 90 CrIeReN0371of2009 e2m It has been arguedby learned counsel for the revlSlO petitioner that thereis clear attempt on thepartof the to fill up the lacuna in the case of the which is not as per law It is 61rthercontendedthat the case was at thestageof arguments and ratherpartarguments were also addressedwhen thepresent was moved hence is caused to the and he 1 L has been deprived of rightof fair trial It has furtherbeen contendedthat filed one after another for additional 0 C witnessesunder Section311 CrPC and that thepresentapplication can be said to be a fifth one C5 On the other hand it has been argued bylearnedStatecounsel I that the witnesssoughtto be examinedby the namelyHC Z SukhdevSinghand allowed by learned trial Court is very material for just decisionof this case and that the for additional evidence can be Q moved at any stageof trial hence no fault can be found with the X orderpassed bylearnedtrial Court c4j The relevantparaof the order dated522009 passed CO by leamed trial Court allowing of in terms of Section311 CrC readsas underl e Z After hearing learnedcounselfor theparties andgoing 0m through the records of the case it is found that inadvertenc OJJ1 rathernegligence on the part of the agency and 4 so also the is written on the wall but this reason alone should not be permitted to come 1Il theway of evidenc which is necessaryfor effective disposal of the case The Court is not fetteredbecauseof lack of competence of the officer or the agency Caseof the is that Vaginalswabs and smear slides lifted from the deadbodyof Babyduringpostmortem were sent for DNA Profilingand her DNA profilehas matched with the DNA profileof the accused To prove this point 1S required to establisha chain of its witnesses and one of the link in that chain is C Sukhdev Singhbut was not Gupta Suruchi 2013.03.21 12: 36 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 91 t9 J CrIeRN00371of2009 e3e 1 cited as a witness in the list of witnesses For all these reasons is allowed subject to however paymentof Rsl000 as costs payable to District LegalServiceAuthority The Statewould be at libertyto recover this amount from the erring and officer A copyof this order be sent to SSP Jalandhar for m L Adjoumed to 1022009 thedatealreadyOxedfor PWs It is pertinent to Section311 CrPC underwhich 0 C the was moved and the impugned order was passedThe same Z readsas under t5 311 ower to summon material witness or examlne I personpresenteAnyCourt may at any stageof any inquiry Z trial or other proceeding under this Code summon any person asa Witness or examineany person in attendance thoughnot summonedas a witness or recall and reexamine any person I already examined and the Court shall summon and examineor c4j recall and reexamine any such person if his evidence appears 00 to it to be essentialto thejustdecisionofthe case Il 7 While the said provisionof Section 311 CrPC Z Honble ApexCourt in Hanuman Ram vse The Stateof Rajasthanand CL orse2008 RCR 823 observedas under MJJlJ 6 The Sectionis 111two parts Whereas ee the word used in the Orst part is may the secondpart uses shalr In consequences the flrst part givespurely authority to a Criminal Court and enables it at anystageof an enquirytrial or proceeding under the Code a1 to summon any one as a witness or bl to examineany person presentin Court or to recall and reexamine any person whose evidencehasalready beenrecorded On the other hand the second partis and compelsthe Court to take anyof theaforementionedstepsif the new evidenceappearsto it essential to the just decision of the casee This is a provision enabling and lll certalll Gupta Suruchi 2013.03.21 12: 36 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 92 V CrleReN0371of 2009 4 clrcumstances lmposing OIl theCourt bydutyof examining a materialwitness who would not be brought before it It is couched in the widest possibleterms and calls for no limitation either with regardto the stageat which the powers of the Court should be exercised or with regard to the manner lll which it should be exercised It is not onlythe m r but also the plaindutyof a Court to examine such of those witnessesas it considersabsolutely necessaryfor doingjustice 0 C between theState and the subjectThere lS a dutycast upon I theCourt to arrive at the truthbyall lawful means and one of 0 suchmeans is the examinationof witnessesof its own accord I whenfor certain obvious reasons either party1Snot Z to call witnesseswho are known to be in a position to speak relevantfacts 7 The object Section 311 of the Codeis that theremay not be failure of justiceon account of mistake c6 of either partyin bringing the valuable evidence on record or leavingambiguity in the statementsof the witnessesexamined from either side The determinativefactor is whether it is 42 Z essential to the justdecision of the case The section is not CL limited onlyfor the benefit of the accused and it will not be lJ an improper exercise of the powers of the Court to summon a witness under the Section merelybecause the evidence supportsthe case for the and not that of the accused The section is a general section which applies to all enquiries and trial under the Code and empowers to issue summons to any witness at any stageof such trial or enquiry In Section 311 the significantexpression that occurs is at any stageof inquiryor trial or other proceeding under this Code It is however to be bornein mind that whereasthe section confers a very wide poweron the Court on witnesses the discretion conferredis to be exercisedjudiciouslyas the wide the power Gupta Suruchi 2013.03.21 12: 36 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 93 1 1 CrlReNoe371of2009 8e thegreateris thenecessity for ofjudicialmind 8 As indicated above the Section 1S wholly The second part of it imposes upon the an It is that the Court shall summon and examine all persons whose evidence appears to be essentialto thejustdecision of the case It is a cardinalrule 111 1 the law of evidencethat the best available evidenceshould be brought before theCourt Sections60 64 and 91 of the Indian 0 0 Evidence Act 1872 short Evidence Acto are basedon this rule The Court is not under theprovisions of C5 the Code to compeleither the or the defence to I examine any particularwitness or witnesseson their side This must be left to thepartiesBut in weighing theevidence the Court can take note of the fact that the best available evidence has not been given and can draw an adverse I inference The Courtwill often have to depend on cS madeby the partiesor on inconclusive inferenc from facts elicited lll the evidence In such casesthe Court 7 has to act under the secondpartof thesection Sometimesthe Z examinatlon of witnessesas directedby the Court mayresult C 111what is thought to be Sllingof That is purely 1llll a factor and cannot be taken into account Whether the new evidenceis essentialor not must of course depend on the facts of each case and has to be determinedby the PresidingJudge 9 The objectof Section311 is to bringon record evidence not only from the pointof view of the accused and the prosecutionbut also from the pointof Vlew of the orderly societyIf a witnesscaIled by Court givesevidenc against the he should beallowed an to crosse examlne The rightto crossaexaminea witness who is called by a Court anses not under theprovisionof Section 311 but under the Evidence Act which givesa partythe rightto crosse Gupta Suruchi 2013.03.21 12: 36 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 94 CrIRNo371 of2009 e6m a witness who is not his own witness Since a witnesssummonedbythe Court couldnot be termeda witness of any party the Court should givethe rightof to the These aspectswere in JagatRavi v State of MaharashtraAIR 1968 SC 1781 Rama Paswan and Orse ve State of 1 2007 21RCR 6Criminall7171 2007 1 RAJ 7332 SCC 191 and Iddar and orse vSeAabida 0 0 and RCR Criminall 90922007 1911 2007111 SCC 21110 99 C5 Onthe same pointreferenceis also made to another I ofHonbleApexCourt renderedin Himanshu SinghSabharwalvs State Z ofMePeand ors 2008 2l RCR Criminall 267 wherein it was observedas under t 16 The Courts have to take a role in a tria I Theyare not to be taperecordersto recordwhatever 08 1SbeingstatedbythewitnessesSection311 of the Code and Section165 of the Evidence Act confer vast andwide powers 7 Oll Officersof Court to elicit all necessarymaterials Z byplayingan active role in the evidence collectingprocess Theyhave to monitor the in aid of justice in a 101 manner that which is not relevant 1S nOt broughtmto record Even if the prosecutor 1S remiss in some waysit can controlthe SO thatultimate ie truth is arrivedat This becomes morenecessarywhere the Court has reasons to believethat the agency or the prosecutoris not actingin the manner TheCourt cannot afford to be wishfully or to be ignorant or obliviousto such serious or dereliction of dutyon the partof the The prosecutorwho does not act fairlyand acts more like a counsel for the defenceis a liabilityto the fair judicial and Court could not also playinto the handsof such Gupta Suruchi 2013.03.21 12: 36 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 95 0 CrIeReNoe371 of2009 4e agency showingindifference or an attitudeof total aloofness 17 The power of the Court under Section 165 of the EvidenceAct is in a way to its power under Section311 of the Code The Sectionconsists of two parts 1ee i givinga discretion to the Court to examinethe witness m at any stageand 6iilthe portionwhich compels the Court to examine a witness if his evidenceappearsto be 0 C4 essential to the just decision of the Court Thoughthe 1 discretiongivento the Court is very wide the very width 0 requires a caution In Mohan Lal ve Union of 1 e P India 1991 01 RCR Criminal 182 1991 SupplI SCC Z 2711this Court has observed while thescope and 2 ambit of Section 311 that the very usageof the word such as anyCourt at any stage or any enquiryor trial or other I procedingsany person and any such personclearlyspells 08 out that theSection has in the widest possible terms and do not limit the discretionof the Court ln any way j 7 However as noted above the very width requiresa Z cautlOll that the powers should be tl invoked as the of justicerequireand exercised 14lJl udiciallywith and with the provisions of the Code The secondpartof the Sectiondoes not allow any discretion but and binds the Court to take necessarystepsif the fresh evidence to be obtained is essential to the justdecision of the case essential to an active and alert mind and not to one which is bent to abandon or abdicate Objectof the Section is to enable the Court to arnve at the truth of the fact that the or the defence has failed to producesome evidencewhich is necessary for a just and proper disposal of the case The poweris exercised and the evidenceis examined neither to helpthe prosecution nor the defence if the Court feels that Gupta Suruchi 2013.03.21 12: 36 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 96 CrleReN0e371of2009 e IJ 1 there is necessity to act ln terms of Section 311 but onlyto subservethe cause of justiceand publicinterest It is done with an objectof gettingthe evidencein aid of a justdecision and to uphold the truth 99 As is clear from the order passedby learned trial Court vaginalswabs and smear slides were lifted from the of the minor P C girlduringpostmortem and the same were sent for DNA profilingand her DNA profilewas matchedwith the DNA profileof the accused henc 111 0 C order to prove thispointthe is to establishchainof its Z witnesses Evidence of Sukhdev Singhis essential in that direction C5 Further as is clear by the orderpassedbylearnedtrial Court as well as by I of learned counsel for the there is clear Z negligereon the partof the agency as well as on the partof the 111not and the materialwitncs3 Howevcras hasbeenobservedby Honhlc ApexCourtin Himanshu Singh Sabharwals case supra the trial Court cannot sit as a rnute spectator 06 duringtrial and has to take role in tria The witnessis very ao materialand essentialfor the decision of thecase The objectof Sectionis to enable the Court to arrive at the truth of the fact that W2 Z prosecutionor defencehas failed lo producethe evidence which is m necessary for justandproper disposal of the case As hasbeen observedby 8A Honble ApexCourt in Hanuman Rams case Supralthe second partof Section 311 CrPC is and compels the Court to take any ofthe stepse to summon any one as a witness or to examlne any person present in the Court or to recall and reexamine any p6rsonwhose evidence has already been recorded if the new evidence appearsto be essentialfor justdecision of the case It has also been arguedbylearnedcounsel for the revisionletitioner that in the impugned order it has been mentioned that the name of the witnesswas not mentioned in the Iist of the witnesses however he had alreadybeen examined as PW15 Howevereven if it is taken that it has been mentioned by learned trial Court that name of Constable Sukhdev Singhwas not mentioned as one of the witnesses in the list of witnesses the same 1s not goingto make any Gupta Suruchi 2013.03.21 12: 36 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 97 J CrleReN0371of2009 n9a difference The witness is materialone to prove the link evidenceof vaginal swabs and smear slideslifted from the of the deceasedduringpostmortem for DNA profile Henceit cannot be said that any illegality hasbeencommitted bylearned trial Court while passing the order There is no merit in thepresentrevisionpetitionThe same 1S a herebydismissed 0 1812010 1 raS8c uptal C Judg meenu I LJ C5 Notel Whetherto be referredto Yesl I Ar Z e2 r I r 08 5l 1 7 Z Qm r Gupta Suruchi 2013.03.21 12: 36 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document