IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CrMMO No. 35 of 2010 alongwith 36, 37, 80 and 81 of 2010 Date of Decision: 29.06.2010 ________________________________________________________________________ 1. CrMMO No. 35 of 2010 Dheeraj Singh and others ….Petitioners. Versus M/s Suriti Enterprises ….Respondent. 2. CrMMO No. 36 of 2010 Dheeraj Singh and others ….Petitioners. Versus M/s Suriti Enterprises ….Respondent. 3. CrMMO No. 37 of 2010 Dheeraj Singh and others ….Petitioners. Versus M/s Suriti Enterprises ….Respondent. 4. CrMMO No. 80 of 2010 Dheeraj Singh and others ….Petitioners. Versus M/s Suriti Enterprises ….Respondent. -: 2 :- 5. CrMMO No. 81 of 2010 Dheeraj Singh and others ….Petitioners. Versus M/s Suriti Enterprises ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting?1 Yes. For the petitioners : Mr. Arvind Sharma, Advocate. For the respondent : Mr. Sanjeev Kuthiala, Advocate. Dev Darshan Sud, J (oral). All these five petitions are being disposed of by a common judgment as they involve a common question of law which is the scope and ambit of the powers of the trial Court under Section 311 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘The Code’) to allow additional evidence. 2. These cases have a chequered history. The petitioners herein preferred application(s) for dismissal of the complaint(s) filed by the respondents. A number of grounds were urged for the consideration of the court. These application(s) were taken up for decision by the learned trial -: 3 :- 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. Court on 17.4.2006 and the application(s) were dismissed by a detailed order. The learned court also proceeded to observe that the application(s) were nothing but a ploy to delay the disposal of the complaints. This order was challenged in this High Court in Cr.MMOs No. 54, 55, 56, 57 and 58 of 2006 which were dismissed as withdrawn on 20th September, 2006. The petitioners therein, (who are also the petitioners in the present petitions), had challenged the legality and validity of the proceedings instituted against them under Section 138 of the Negotiable Instrument Act (hereinafter referred to as ‘The Act’). Those petitions alongwith the stay applications were dismissed as withdrawn on 20th September, 2006. The litigation in this Court was a sequel to the decision rejecting the prayer for dismissal of the complaints instituted by the respondents herein. In each of these cases, an application was moved before the learned Additional Chief Judicial Magistrate praying for dismissal of the complaint on a number of grounds which, according to the petitioners, were sufficient in law for non- suiting the respondents herein. These grounds included improper filing of the complaint i.e. institution through a person who was not authorized in law to do so, non-declaration of any cause of action, non-filing of the cheque by a holder of the instrument and the complaint(s) being nothing but an abuse of the process of law. -: 4 :- 3. Adverting to the facts of the present case, in each of the Revision Petitions, the order passed by the learned trial Court allowing the application under Section 311 of the Code, has been challenged. The complainant/respondent filed the application on 3.11.2009 on the allegations that certain passes in the care, custody and possession of the State Excise Department showing the supply/receipt of IMFL (Indian Made Foreign Liquor) and Beer by the petitioners herein would be substantiated through this evidence and that this evidence was of such a nature which cannot be manipulated as it is coming from the custody of the Government. Thus, according to the complainant/respondent, this was one part of the important link in the evidence to show that the Negotiable Instrument(s), subject matter of the complaint, was issued for this supply. A prayer was made that the dealing hand from the office of the Excise & Taxation Department alongwith the passes of the transit of IMFL and Beer of M/s D.S. & Company from the month of October, 2004 to 30.3.2005 (for which the Pass No. 1 to 388 were given) be summoned from the Department and be allowed to be proved on record in accordance with law. This application was resisted by the petitioners on a number of grounds including the fact that the complaint was not properly constituted and as on the date when the application was filed, there was no complainant before the court and, therefore, the entire exercise -: 5 :- was one of futility. It was also urged that the application(s) was nothing but an abuse of the process of law as it was the duty of the respondents / complainants to have cited the witnesses in the complaint and write down this documentary evidence which was within the knowledge of the complainant. 4. The learned trial Court by its detailed order dated 05.02.2010 and relying upon the judgment of this Court in Gurdial Singh versus Laxmi Dhar, Latest HLJ 2009 (HP) 41 held that the application(s) were maintainable and that the evidence sought to be produced is relevant and material to arrive at a rightful conclusion, to find out the truth and to do justice between the parties. The court held that in terms of the decision of this Court, there was a duty cast upon the Court to arrive at the truth by all lawful means. The respondents before the trial Court are now in revision before this Court. 5. I have heard learned counsel appearing for the parties and have gone through the record. 6. Before adverting to the legality of the order, the scope and ambit of the provisions of Section 311 of the Code may be considered. In MohanLal Shamji Soni versus Union of India, 1991 Supp (1) SCC 271, the Supreme Court held: “6. Before adverting to the arguments advanced on behalf of the appellant, we would examine in general -: 6 :- the scope and intent of Section 540 of the old Code (corresponding to Section 311 of the new Code). 7. Section 540 was found in Chapter XLVI of the old Code of 1898 under the heading ‘Miscellaneous’. But the present corresponding Section 311 of the new Code is found among other sections in Chapter XXIV under the heading 'General Provisions as to Enquiries and Trials'. Code except for the insertion of the words 'to be' before the word 'essential' occurring in the old section. 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 Court and enables it 'at any stage of enquiry, trial or 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 (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. -: 7 :- However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require 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.It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and 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 sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the court can draw a presumption under Illustration (g) to Section 114 of the Evidence act. In such a situation a question that arises for consideration is whether the presiding officer of a court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a court must discharge its statutory functions – whether discretionary or obligatory – according to law in dispensing justice because it is the duty of a court not -: 8 :- only to do justice but also to ensure that justice is being done. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated. 11.There are various other provisions in the new Code corresponding to the provisions of the old Code empowering the court specified therein to recall any witness or witnesses already examined or summon any witness, if it is felt necessary in the interest of justice at various stages mentioned in the concerned specific provisions. ...........15.Besides the above specific provisions under the CrPC and CPC empowering the criminal and civil courts as the case may be, to summon and examine witnesses, a judge in order to discover or to obtain proof of relevant facts is empowered under Section 165 of the Indian Evidence Act to exercise all the privileges and powers subject to the proviso to that section which power he has under the Evidence Act. Section 540 of the old Code (Section 311 of the new Code) and Section 165 of the Evidence Act may be said to be complementary to each other and as observed by this Court in Jamatraj Kewalji Govani -: 9 :- v. State of Maharashtra “these two sections between them confer jurisdiction on the judge to act in aid of justice”. 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.......”(PP-276 to 279). 7. This is the cardinal principle of law applicable for exercise of powers under Section 311 of the Code. This principle has been re-iterated by the Supreme Court in (2006) 3 SCC 374, that in fact, it is the interest of justice which is primary and cardinal. 8. In Mukunda Dev Baral versus Sanjib Baral and others, 1992 Cri. L. J. 3048, the High Court of Orissa has held that even in a case instituted by the police, an application at the behest of the informant is maintainable. Construing the words “just decision of the case”, the Court holds: -: 10 :- “ 5.For application of the provisions of Section 311 it is to be considered whether evidence of the concerned witness is essential for a just decision in a case. Where the evidence of any person appears to the Court to be so, the Court may exercise its discretionary power in any of the three ways sanctioned in the first part of the section, i.e. (i) summon any person as witness; (ii) examine as witness any person present in Court though not summoned; (ii) recall and re-examine a witness who has already been examined. See AIR 1968 SC 178: (1968 Cri L J 231) : Jamatraj v. State of Maharashtra. The test of just decision is not limited to something necessary in the interest of the accused only. It is equally applicable to the case of the prosecution. As observed by the Supreme Court in Jamatraj's case (supra), where the Court is satisfied that the examination or re-examination of a witness is essential for a just decision of the case, its action cannot be challenged as excess of jurisdiction because it has been done after the defence has closed its case. That would be negation of fairplay and equity. In the instant case, merely because the manner of investigation was deficient, it cannot certainly be a ground for refusal of the prayer to recall a witness...........”(P-3049) 9. This Court in Narcotics Control Bureau versus Yuvraj Gurang and another, 2006 Cri. L. J. 2862, relying upon the decision of the Supreme Court in Mohanlal Shamji Soni's case supra and Rajendra Prasad versus Narcotic Cell through its Officer-in charge, Delhi , AIR 1999 SC 2292, held that the interest of justice was paramount and that the concept -: 11 :- of filling up lacuna of evidence cannot be used in the old conventional sense of the term. In that case, the order of the trial Court refusing the permission under Section 311 of the Code to the prosecution was quashed and set aside. These principles find re-iteration in Prithvi Singh versus Randhir Singh and Others, (2008) 17 SCC 654, Sarju versus State of Uttar Pradesh, (2009) 13 SCC 698, Jagdish Chand versus Kartar Chand, Latest HLJ 2009 (HP) 912 and Gurdial Singh versus Laxmi Dhar, Latest HLJ 2009 (HP) 41. 10. I need not multiply precedent any further. Looking to the facts of the present case, what I find is that a prayer has been made by the complainant to bring on record Excise passes which, obviously, are in the custody of the State. It is not as if bringing all these passes in evidence will per se establish the guilt of the respondents. It is, but, obvious that they have to be proved and then urged as a link in the evidence for attributing and proving liability of the petitioners. The order passed by the learned trial court does not determine the guilt of the petitioners nor does it close the right of the petitioners to lead such other evidence in their defence or in opposition to which the respondents seek to establish. 11. One other submission made by the learned counsel requires to be noticed that there is no validly constituted -: 12 :- complaint before the learned trial Court and, therefore, not only the application, but the entire proceedings are without jurisdiction. He placed his reliance on the decision of the Supreme Court in National Small Industries Corporation Limited versus State (NCT of Delhi) and others, (2009) 1 SCC 407. Prima facie, from the record I find that this aspect is not established. I also find that this point was being urged by the petitioners right since the inception of the proceedings against them. If it is right that there is no valid complaint, then in that event, no proceedings can continue. This is a fact which has to be established by evidence on record and not by a mere allegation. This objection, of course, could also be subject to the previous determinations made by the court on the maintainability of the complaint which decision has attained finality. 12. These Revision Petitions are, accordingly, dismissed. Learned counsel appearing for the parties then submit that a direction be issued to the trial court to dispose of the complaints at an early date. I am not passing directions for a time bound decision of these cases since it encroaches on the court's calender of the trial court. In these circumstances, it is directed that the parties shall appear before the learned trial court on 19th July, 2010. The petitioners herein will, of course, be given a chance to lead any evidence in rebuttal to the additional -: 13 :- evidence which has been allowed to bring on record by the respondents herein. The trial court shall endeavour as far as possible to dispose of the cases at the earliest. The records received from the court below be sent back immediately. (Dev Darshan Sud) Judge June 29, 2010 (rajni)