61 42 C3 0 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CrI of2010O8MI Date of Decisionl CentraI Bureau of Investigation Anti CorruptionBranch Sector 30AChandigarh Petitioner j Versus r 0 ColSP Nandrajog 0 Respondent C kk 5 CORAM HONBLE MR JUSTICE AUGUSTINE GEORGE MASIH Present MSumit GoeI Advocate Z for the petitioner Mr KanwaljitSinghSr Advocate with 0 Mr Chanderdeep SinghAdvocate for the respondent I kRWR C3 Z AUGUSTINE GEORGE MASIH J This revision petitionhas been preferredby the prosecutionchallenglng 0 the order dated 142010 passed by the Special Judge CBII AmbaIa 7 Z dismissing the applicationfiled bythe prosecutionunder Section 311 CrC for 11 examination of prosecutionwitness S UpapsakS P 31 Anti Corruption Branch Shimla nvestigatingOfficerl on the groundthat he could not come presentin Couil on 17 32010 due to some unavoidable oHicial work when the case was fixed for his further evidence on which date the Court closed the evidence of the prosecution as well It is the contention of the counsel for the petitionerthat a case No RCCHG1995A0036 dated 1121995 was registeredagainstCol S Nandrajog since retiredl the then CoI Q Vorks S Projectl HQ Western Command Chandimandir under Section 521read with Section 51el of the Prevention of CorruptionAct 1947 and Section 1321 read with Section 1 l el of the Parkash Om 2013.05.31 13: 52 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 62 7 0 0 C Revision No 2911 of 2010 Preventionof CorruptionAct 1988 on the allegationsthat the accused while e postedand functioningat diHerent positionsin the Armyduringthe period1986 L to 1993indulgedin corruptpctices and bycorruptand illegalmeans amassed assetswhich were disproportionate to his known sources of income to the tune ofRs 1111249 25 On completionof investigationCBI filed chargesheet on 29 1 1999 againstCol SP Nandrajogunder Section 521read with Section 5el of the Preventionof Corruption Act 1947 and Section 1321read with Section 13el C of the Prevention of CorruptionAct 1988 in the Coun of SpecialJudgeCBl 0 0 Ambala I Charges were framedagainstthe accusedespondenton602000for 0 I having assets to the tune of Rs247021 Eighty two prosecutionwitnesses were cited out of which sixtynine were examined Nine Z were givenup and four prosecutionwitnesses are yetto be examinecl AII the 2 prosecutionwitnesses have fully supportedthe case of the prosecution I Evidence of RS UpasakS P Omcerlwas in progress when on 17 32010 he could not come presentin Court and sent a requestfor Z of the case on the groundthat he was unable to appear in Coun oo because of some urgentofficial work On the said date the trial Coun closed the mw3 prosecutionevidence He contends that the examinationtlief of the Z Officer Sh S Upasakstood concluded and the case was fixed for crossexamination on 17201 0 when this order was passedand the case was adjournedto 30 32010 for recordingstatement of the accused under Section 313 CrC On the said date applicationunder Section 311 CrP was filed in Court with a prayer that his evidence be recorded Witness S Upasak was physicallypresent in Court on the said date He had undenaken in the application to remain presenton all future dates also Hence a prayer was made that the applicationbe ailowed The said application was finailyrejectedvide the impugnedorder dated 14010 Order dated 30 32010 was challenged bythe C1 by filingCrl Revision No 1919 of 2010 In this petitioninadvertently order dated 142010 was not Parkash Om 2013.05.31 13: 52 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 63 0 1 Crl Revision No 2911 of 2010 73 impugnedThe HighCourt issued notice to the respondentaccused and during the pendencyof the said revlSlOIl petitionorder dated 12A201 O vhich IS impugnedin this petitionl has not been challengedpreferringthe present reVlSlOn petitionon 292010 alongwith an applicationfor condonation of delay of 106 daysin which notice was issued bythis Coun on 812010 Beforethe same Bench on this veiy day e 812010 CIl Revision Petition N1919 of 2010 was Iisted which was dismissed as rendered infructuous on the statement 1 made bythe counsel for the patlieson the groundthat a subsequent order has 0 been passedby the trial Couit which has been challengedthroughanother 0 0 revisionpetitionwhich is the presentone I He contends that the Officer could not come presenton the C5 I said date because of unavoidableurgentofficiai work on 17201 0 when the case was fixed before the trial Court He himself came presentfor his Z examination which was for the purpose of his crossexamination It is his C contention that the interest of justicewould be defeated if the evidenceof the I Officer is not permittedto be recorded by hls examination He contends that the impugned order is againstthe spiritof Section 311 CrP Z which mandates a Coutt to summon examine or recall or reexamine any such 00 personif his evidence appears to be essentiai to justdecision of the case In the 7 Iightof the fact that the Officerhad not been crossexamined the Z same maynot be taken in evidence in its absence the case of the prosecution tl may shatterand thereforethe evidence is essential for the just decision of the case The purpose of this Section is to enable Coun to reach a justdecision of the case and to arrive on truthirrespective of the fact that the prosecution or the defence has failed to producesome evidence He contends that thejusticewould be putto periland it would be against the statute itself if the applicationmoved bythe prosecutionis not allowed In supportof this contention reiiance has been placedon the judgmentof the Sikkim HighCoutt in the case of Prem Subba and another vs State of Sikkim 200i1 Crimes 543 Judgmentof the RajasthanHighCourt in the case of Sama Ram vstate of Rajasthan200231RRCriminao 394 and a Parkash Om 2013.05.31 13: 52 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 64 0 Crl Revision No91 1 of 2010 04 r judgment of this Court in the case of Ram Chander vs State of Hatyanaand others 20041 RCR Criminail ReIiance has also been piacedon the judgmentof the Honble SupremeCoun in the case of Mohanlal ShamjiSoni v Union oflndia AlR 1991 SC 1346 Counsel for the respondenthas vehementlyopposedthe presentpetition bycontending that total 18 opportunities have been grantedto the prosecution to conclude the evidence of the Officer out of which only on SIX 1 0 occasions he had put in appearance and the prosecutionhas taken more than two years and two months for concluding the evidence of the 0 0 Officer duringwhich vanous Iast opportu n ities were grantedon two occasions I bailable warrants were issuea and on one occasion non4oailablewarrants were C5 I issued for his presence On all occasions the dates were givento the Officer for his presence and evidence on his consent and Z convenience which shows the seriousness of the prosecutionwifh which the C case IS beingpursuedby it He contends that the accused also has a rightof I speedytrial FlR was registered on 12 1995 challan was presentedin Court on t3 29 999 and charges were framed on 6102000 but till date the prosecution Z has not concluded its evidence While passingthe order dated 1742010 closing C the evidence of the prosecutionthe Coun had in detail dealt with this aspect 7 He submits that the OHicer did not appear on 13 dates 1e Z 1922008 1622009 42009 1152009 62009 272009 2311 2009 a 1522009 11 12010 2012010 422010 2322010 and 17 32010 Out of these dates on 191 22008 bailable warrants were issued against the Officer for 194009 and on 202010 for 42010 on which date requestwas sent for adjourriment which was declined and nonebailablewarrants were ordered to be issued againsthim for 1522010fhis shows the conduct of the prosecutionas the Investigating Officer had onlyappearedon 232009 12102009 182009 7122009 152010 and 8 32010 out of these SlX occasions on one occasion he could not be examined He fuither contends that the order dated 17010 closingthe prosecution evidence has attained finality Parkash Om 2013.05.31 13: 52 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 65 0 C Revision No91 1 of 2010 as CriminaI Revision No 1919 of 2010 preferredby the C1 challengingthe same stands dismissed as infructuous on 811 2 010 therefore throughthis reVlSlOn petitionan effort has been made for review of the said order which IS not permissiblein Iaw The interest of respondent would be greatlyprejudicedif the applicationunder Section 311 CrC preferredbythe prosecutionis ailowed at this stage especiallyin the Iightof the fact that the prosecutionhas failed to conclude its evidence after more than 10 years of framingof the charge 1 ReIiance has been piacedon the judgment of this Court in the case of Dinesh and others vs State of Haryanaand others RCR iminall128 0 0 wherein this Court held that where the case had been continuingfor about 8 I yearsand Iast had been grantedto the prosecutionto produceall its t5 evidence appllcationunder Section 311 Cr fC for grantof funher opponunity I if the witnesses were not examined was not justifiedOn this basis he prays for Z dismissal of the presentpetition lr Responding to the submissions made bythe counsel for the respondent I counsei for the petitionerhas submitted that merelybecause the Coun had closed the evidence of the prosecutionwould not itself be a groundfor not Z entertaining or allowingthe applicationunder Section 311 CrP preferredby 0 the prosecutionHis submission is that the revISIOn petitionpreferredby the Vn2 prosecution was dismissed as rendered infructuousin the Iightof the joint Z statement made bythe counsel for the paniesthat in the Iightof the subsequent 0 order passedby the trial Coun which had been challenged in the present petitionthe petitionchallenging the order dated 17 32010 had been rendered infructuous He contends that no benefit of the said consented order can be gainedby the respondentaccused and in any case he submits that no prejudicewould be caused to the respondent as he would have an opponunity to crossmexaminethe witness e the OHicer have heard counsel for the partiesand have gone through the records of the case Parkash Om 2013.05.31 13: 52 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 66 0 Crl Revision No91 1 of 2010 7 For the disposalof the presentcase provisionsof Section 311 Cr needto be analyzed to understand the purpose and intent for which the same findsplacein the Code of Criminal Procedure Section311 CrC reads as follows 31 1 Power to summon material witness or examIne personpresent AnyCourt may at any stageof any inquirytrial or other proceeding under this code summon any person as a witnes or examine any person in attendance thoughnot C summoned as a witness o recall or reexamine any person 0 alreadyxamined and the court shall summon any examine 0 or recall and reexamine any such person of his evidence appears to it to be essential to thejustrlecisionof the case 17 C5 I A perusalof the above would show that this Section can be divided Z into two parts In the first part the word used is may whereas in the second partit uses word shalr The first part therefore can be said to be discretionary in nature and is in the form of an enablingprovisionwhere the Crlminal Court I can at any stageof any inquirytrial or other proceedingunder the Code of Z CriminaIProcedure summon any person as a witness or examine any person in 10 attendance thoughnot summoned as a witness or recall or reexamine any personalreadyexamined On the other hand the second partis and 7 Z compelsthe Coun to take any of the above mentioned stepsif the evidence 11 appearsto it essential to the just decision of the case The word used in this Section such as any CouIt at any stage of any inquiry trial or other proceedingany person any such person clearlyemphasizeand spellsout that this Section Is expressedin the wider possibleterms and therefore does not Iimit the discretion of the Court in any way and thus requiresto be interpreted in similar fashion respectingthe will of the IegislatureThere can be no doubt that the objectof the Section is not to enable any one or the other pany to fill up gaps of its case and this Section is not to be used to enable the prosecution either to improveits version at a Iaterstageor enable it to repairthe Iacuna The Iimitof the Courts jurisdictionis dictated by the exigenciesof the Parkash Om 2013.05.31 13: 52 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 67 0 Cr Revision No91 1 of 2010 situation and fair playand goodsenses are the onlysafeguardsTheSection does not Iay down any condition exceptthat the evidence is considered necessaiybythe Court for the justdecision of the case This Section confers a verywide power upon the Couit and has been givento preventany dangerof of justiceThus the onlycondition necessary to applythis Section is that the Court must be satisfied that such evidence is essentiai to the just decision of the caset is the interest of justicethat the guiltyperson should be m convictedjustas it is that an innocent person be acquittedt cannot be said to 0 be improperexercise of discretion to examine a witness under this Section 0 0 merelybecause his evidence will supponthe case of the prosecutionand not I that of the accused B9 usingthe word essential by the adjectivejust the t5 has clearlyindicated that the powers would be exercised very cautiouslyonlywhere the Coun thinks evidence is absolutely necessary in the Z interest of justice 2 Q The Honble SupremeCoun in the case of Ram Avtar vs State of HaryanaA1R 1981 SupremeCourt 1036 in para 2 thereof has heid as follows Z e The adversarysystemof trial beingwhat it is there ts an m unfortunatetendencyfor a judgepresidingover a trial to assume the role of a referee or an umpireand to allow the trial to develop 7 Z into a contest between the prosecutionand the defence with the inevitable distortions flowingfrom combative and competitive Qw elementsentering the trialprocedureIf a Cminal Court is to be an effective instrumentin dispensingjustice the presidingjudgemust cease to be a spectatorand a mere recording machine He must become a patticipantIn the trial by evincingintelligentactive interest byputtingquestionsto witnesses in order to ascenain the truth As one 07us had occasion to say in the pastl EveryCriminal trial is a voyage of discovety in which truthis the quest It is the dutyof a presidingJudgeto exploreevery avenue opento him in order to discover thetruthand to advance the cause ofjusticeFor that purpose he is expressly invested bySection165 of the Evidence Act with the rightto put questionsto witnesses Indeed the rightgivento a JudgeIS SO wide that he may ask any questionhe pleasesin any form at any time of any witness or of Parkash Om 2013.05.31 13: 52 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 68 0 Crl Revision No91 1 of 2010 eA the pattiesabout ai7y fact relevant or irrelevant Section 17221of the Code of C17minalProcedure enables the Coun to send for the policediariesin a case and use them to aid it in the trial The record of the proceedingsof the committingMagistratemay also be perusedby the Sessions Judgeto futther aid him in the trial lSessionsJudge Nellore v Intna Ramana Reddy 11 R 19721 Andh 6831 71 Honble Supreme CouIt in the case of Godr PacMic Tech Limited Ve 897 1 Computer Joint India Limited 200813I RCJ1 lCriminall89 200841RA J CC 9 627 while considering the provisionsof Section 311 CrC has held as followse 0 e The objectunderlying Section 311 of the Code is that there 0 rnaynot be failureofjustice on account of mistake of eitherpattyin I C5 bringingthe valuable evidence on record of Ieavingambiguity Ill I the statements of the witnesses examined from either side The determinativefactor is whetherit is essential to thejust decision of Z the case The Section is not Iimited only for the benefit of the accused and it will not be an improperexercise of the powers of C the Court to summon a witness under the Section merelybecause the evidence suppottsthe case of the prosecutionand not that of I the accused The Section is a generalSectionwhich appliesto all r proceedingsenquiriesand trials under the Code and empowers Z the Magistrate to Issue summons to any witness at any stageof 10 such proceedings trial or enquio7 Section 311 the significant expressionthat occurs is at any stageof any inquiryor trial or maw Z other proceedingunder this Code It is however to be bome In mind that whereas the Section confers a very wide power on the 0A Court on summoningwitnesses the discretion conferred is to be exercised judiciouslyas wide the power the greateris the necessityfor applicationofjudicial mind 9 As indicated above the Section is wholly The second patt of it imposes pon the Magistratean obligatiorit IS that persons whose evidence appears to be essential to the just decision of the case It is a cardinal rule in the Iaw of evidence that the best available evidence should be broughtbefore the Court Sections 60 64 and 91 of the Evidence act 1872 on shott Yhe Evidence act4are based on this rule7e coun is not empowered under the provisionsof the Code to compeleither the prosecution or the defence to examine any particularwitness or witnesses on their side This must be Ieft to the parties But in weighingthe Parkash Om 2013.05.31 13: 52 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 69 0 Crl Revision No91 1 of 2010 2 evidence the Coutt can takenote of the fact that the best available evidence has riot been given and can draw an adverse inference The Coutt will often have to dependon interceptedallegations made bythe partiesor 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 bythe Court may result in what is thoughtto be Yillingof That is purelya subsidiaryfactor and cannot be taken into account Whether the new evidence is 1 essential or not must of course dependon the facts of each case and has to be determinedbythe PresklingJudge 0 10 The objectionof Section 311 is to bringon record evidence 0 not onlyfrom the pointof view of the accused and theprosecution I but also from the pointof view of the orderlysociety If a witness C5 called by the Court givesevidence againstthe complainanthe I should be allowed an to crossaexamine The rightto e crossexamine The rightto crosseexaminea witness who is called Z by a coutt arises not under theprovisionsof Section 311 but under the Evidence Act which givesa partythe rightto crossexamine a r witness who is not his own witnessSince a witness summoned by eA I the Coutt could not be termra witness of any particularparty the L0 Court should givs the right of crossexamination to the Z COmplainantheseaspectswere highlightedin JamatrajKewalji Govani v State of Maharashtra 1967 SR 4151 17 r This Court while the ambit and scope of Section 311 7 Z Cr P C in the case of Jagdishand another vs State of Haryana Criminal Revision No 2547 of 2009 decided on 252009 has held as follows The section when read as reproducedabove clearlyshows that this provisiongivesamplepowers to the Coun to recall summon or reeexamineany person in evidence if it appears to be essential to thejust decision of the case The powers of the Court are wide enoughto 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 ofjusticeshould not suHer7e primaIyaim and objectof this Section is to do justicebetween the paniesIf the Court comes to a conclusion that the productionof such evidence which has been soughtto be producedtakingrecourse to Section 311 CrC would enable the Court to come to a correct findingit would be fullyjustifiedin permitting the evidence to be produced Parkash Om 2013.05.31 13: 52 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 70 0 Crl Revision No91 1 of 2010 18 under this SectiorThis Section does not distinguishand rather allowed pr02uctionof evidence whether documentatyor orai whichthe Court feels is necessary for thejust decision of the case and no fetters and impediments can be put in exercise of these powerswhich I7asbeen conferred by the Legislature on the Trial Court when the Legislature did not intend to do soJustice should not be the sufferer The purpose and intent of the trial is to find out the truthand the truthalone should prevailand in its questto find out and to reach the truth the Trial Court has been saddled with Ia powersto make all efforts to reach a correct conclusion which IS 0 the trutl No doubt in the said process the interest of partieshas 3 0 to be taken care f but that does not mean thatjusticeshould be C40 the casualt The rightshave been conferred under the statute 32 both on the prosecutionas well as the accused and when the C5 statuteconfers certain powers upon the Court which is primarily in I the nature of doingjusticeand for that it is the satisfaction of the Court as to the essentiality of the evidence soughtto be produced Z by the pattiesfor the just decision of the case the same IS dependingupon the fact of each case Il Thereafter this Court in the case of Dr GurpreetKaur v Appropriate I Medical OHicer InchargeSubDivision Hospital Z Tehsil Phillaur Walandhoo being CRMM47027 of 2009 decided on 0122009 has held as follows CO A perusalof the above provisionshows that it is a discretion eW2 Z provided to the Court where any inquirytrial or otherproceedings under the Code is pendingthe Court has been givenwide powers to recail or reeexamine any person alreadyexamined if his evidence appears to the Court to be essential for thejustdecision of the caseThe satisfaction is therefore of the Court which has to decide the matterpendingbefore it7e touchstone for exercise ofpowersunderSection 311 CrP is the satisfaction ofthe Coutt that the evideoce 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 already examined This power under Section 311 CrP can be exercised by the Coutt at any stageof any inquitytria4or other proceedings under the Code of Criminal Procedure The intention of the Legislature is to empower and enable the Coutt to come to a correctfindingand for that reason the Coun would be fullyjustified Parkash Om 2013.05.31 13: 52 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 71 0 Crl Revision No91 1 of 2010 Ill permitting productionof evidence whether documentary or ora4 where the Coutt feels that the same is necessaty for the just decisionof the case and no fetterscan be putin exercise of these powersof the Court The cause of justiceis paramountand no has therefore been intentionally put on the Court by the Legislatureto exercise t he powers under Section 311 CrP In the Iightof the above analysis of the provisionsof Section 311 CrP C what comes to the fore is that the essentialityof the evldence for the just a decisionof the case is the harbingerfor which vast powers have been conferred on the Court This power conferred upon a Court under Section 311 of the Code 0 0 of Criminal Procedure are In no manner circumscribed bythe order directing I closure of evidence as the expressionat any stageof any enquirytrial or other C5 proceedings under the Code appearing in Section 311 CrP C clearlysuggest I the ambit and scope of this power however serve onlyone overridingprinciple Z ie the evidence soughtto be adduced should appear to the Court to be 12 essential for the just and proper decision of the case which would include to serve the ends of justice t0 Now revertingto the