IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. M M O No. 61 of 2008. Reserved on 16.10.2008. Date of Decision: 23rd. 08.2008. _______________________________________________________ Ranjeet Singh. ….Petitioner Versus Shyam Lal. … Respondent Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting?.Yes. For the Petitioner : Mr. Suneet Goel, Advocate. For the respondent : Mr. Rupinder Singh, Advocate. SURINDR SINGH, J. The petitioner (accused) has sought the indulgence of this Court by moving the present petition under Section 482 of the Code of Criminal Procedure to quash and set-aside the order dated 23.5.2008 passed by learned Additional Sessions Judge, Sirmour District at Nahan in Criminal Revision No. 1-N/10 of 2008 whereby the order refusing to recall the complainant for his re-examination on an application under Section 311 of the Code of Criminal Procedure moved by the accused- petitioner stands affirmed. The factual matrix of this matter can be summoned up thus: The respondent herein had filed a complaint against the petitioner under Section 138 of the Negotiable Instruments Act. He led his evidence. He and his witnesses were subjected to detailed cross- examination by the accused-petitioner. Even the statement of the Whether the reporters of the local newspapers are allowed to see the judgment? Yes. - 2 - petitioner under Section 313 of the Code of Criminal Procedure was recorded. No defense evidence was led by him. Thereafter, the case was fixed for final arguments on 21.12.2005 but the arguments could not be heard and the case lingered on one pretext or the other. However, final arguments were heard and concluded on 3.4.2006. The case was listed for orders on 26.4.2006 but the parties sought time to advance further arguments. The arguments were reheard and an application was moved on 29-11-2006 by the petitioner, under Section 311 of the Code of Criminal Procedure to recall and re-examine the complainant Ranjit Singh because some relevant facts with regard to the case recently came to his notice which were required to be put on record by cross- examining him. It was also contended that the respondent had filed many false cases under Section 138 of the Negotiable Instruments Act against many other persons, therefore, re-examination of the complainant respondent was essential for the just decision of the case. The contention raised in the application was denied by the respondent and disputed the justification for re-calling the complainant for the said purpose on the ground that the accused/complainant was given full opportunity to cross-examine him, his witnesses and to put his defense, to which he availed. After hearing the parties, learned trial Court dismissed the aforesaid application precisely on the grounds that the accused petitioner was given full opportunity to cross-examine the complainant and his witnesses but at the fag end of the trial, he cannot be allowed to fill in the lacunae if any. The order of the trial Court was un-successfully assailed in revision which came to be dismissed by the Additional Sessions Judge. The aforesaid orders were assailed in the present petition wherein it has been ventilated that the Courts below erred in treating - 3 - new facts as lacunae and it failed to appreciate the real controversy interse parties. The provisions of Section 311 of the Code of Criminal Procedure were wrongly interpreted whereas, the law envisages that an application of this nature can be moved at any stage of the proceedings during the trial. I have heard the learned counsel for the parties and have examined the record vis-à-vis the provisions of law. In fact, the case before the learned trial Court had traveled beyond stages of recording prosecution evidence, examination of the accused under Section 313 of the Code of Criminal Procedure and reached at the stage of final arguments which were also heard. During all the stages, the petitioner herein was having full opportunity to cross- examine the complainant and put up his defense. In his application, he did not spell out as to when new facts came to his notice nor he appended any documentary evidence to substantiate the filing of alleged frivolous complaints. The contention raised is also denied by the complainant. The petitioner failed to avail the opportunities which were provided to him from time to time from the date of framing of the charge till the conclusion of the final arguments. Even it is not clear as to what type of questions were necessary to be put to the complainant. It has not been clarified even now in the petition itself. The question is that at the fag end of the trial Court when the case is at the stage of its final disposal, whether it can be re-opened by recalling the complainant for his cross-examination. The answer is ‘Yes’ if the re-examination is essential for the just decision of the case. Legally, the trial terminates only on pronouncing the judgment either acquitting the accused or convicting and awarding the sentence. The Magistrate has power under Section 311 of the Code of Criminal - 4 - Procedure to recall the witnesses even after the final arguments are over. Section 311 of the Code of Criminal Procedure 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 proceedings under this Code, summon any person as a witness or examine any person in attendance, though not summoned as a witness, or re- call 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 perusal of the Section aforesaid clearly indicates that the Section aforesaid has two limbs, first part gives purely discretionary authority to a Criminal Court and enables it at any stage of an inquiry, trial or proceedings under the Code:- a) to summon any one as a witness; or to examine any person present in Court; or b) 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 above steps if the new evidence appears to it essential to the just decision of the case. It has been held in Iddar & ors versus Aabida & anr. 2007 (2) S.L.J. (S.C.) 1311 by the Supreme court that this is supplementary provision enabling and in certain circumstances 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 - 5 - prerogative but also the plain duty of a Court to examine such of these 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. In the instant case, when the petitioner has not spelt out as to what were the material questions which were required to be put to the complainant and why those were not put when he was cross-examined and further in absence of any record placed before the trial Court in order to find out the relevancy of the complaints/documents, in my considered opinion, the cross-examination of the complainant in the instant case is neither important nor essential for the just decision of the case. Thus, it is not incumbent upon the trial Court to summon the complainant for his re-examination merely on the bare assertions made by the accused on his request without showing any necessity in terms of Section 311 of the Code. It is a settled proposition of law that the powers which are available to this Court under the provisions of Section 482 of the Code of Criminal Procedure can only be exercised in the rarest of the rare cases and when there is any account of failure of justice and it is necessary in the interest of justice to exercise such powers, but in the facts and circumstances of the case, there appears to be no such occasion. Thus the impugned order does not call for any interference by this Court. Accordingly the petition fails and is dismissed. - 6 - Parties are directed to appear before the trial Court on 18.11.2008. The records be sent forthwith. (Surinder Singh) Judge. October 23 , 2008. (bm)