IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. M M O No.67 of 2008 Date of decision:29th September, 2008 Gurdial Singh Petitioner Versus Laxmi Dhar Respondent Coram: The Hon’ble Mr.Justice Surinder Singh, J. Whether approved for reporting ?1.yes For the petitioner: Mr. Suneet Goel, Advocate. For respondent: : Mr.Sanjay Sharma, Advocate. Surinder Singh, J. (Oral) Heard and gone through the record. In this petition, the petitioner has assailed the order dated 26.5.2008 passed by the learned Additional Sessions Judge, Solan, in revision petition No.5-S/10 of 2008 whereby he has affirmed the order of the learned Judicial Magistrate Ist Class Kandaghat, Distt. Solan (H.P) dated 17.1.2008 passed in Cr. Complaint No.15/3 of 2002 whereby the defence evidence of the accused- petitioner was closed. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?.yes 2 In brief the facts of the case are that a case under section 138 of the Negotiable Instrument Act, was filed by the respondent against the petitioner herein. Evidence of the parties was over before the learned trial court. The petitioner had raised a defence that the cheque in question was filled in by the Head Constable Daulat Ram in police station, while settling some dispute in the presence of 5/6 persons. Out of them one witness, Shri Ramesh Chauhan was examined by the accused. After exhausting the list of defence witnesses, the accused-petitioner thought it proper to move an application, under section 311 of the Code of Criminal Procedure, to examine Head Constable Daulat Ram also. The claim was contested by the complainant. Vide order dated 27.7.2006 the learned trial court keeping in view the facts and circumstances of the case, allowed the application on the ground that statement of Daulat Ram is necessary for the just decision of the case, thus allowed the prayer of the accused to examine him and the case was listed for 24.8.2006 for recording his statement. On 24.8.2006 witness Daulat Ram was present but his statement could not be recorded, as the original counsel for the complainant was not 3 present. Thereafter, ordinary process as well as dasti summons and also bailable warrants were issued for procuring the presence of Head Constable Daulat Ram but his presence could not be obtained as according to the petitioner, he was transferred from Police Station, Kandaghat to Kasauli in C.I.D. and thereafter to the C.I.D. office Kusampati. Ultimately the matter was taken on 17.1.2008 on which date the learned trial court closed the evidence of the defence without his examination and even without adopting the coercive method to procure his presence. 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 proceeding 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”. 4 It has been seen that the section has two limbs, first part gives purely discretionary authority to a criminal court and enables it at any stage of an inquiry, trial or proceeding 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 Hon’ble 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 prerogative but also 5 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. From the facts, the learned trial court came to the conclusion that the examination of Head Constable Daulat Ram is essential for the just decision of the case. Thus it was incumbent upon it to summon and procure the attendance of the said witness for being examined in the court. The evidence should not have been closed when otherwise also being a public servant, his presence could have been procured, had the learned trial court exerted a little bit more to get his fresh address or place of posting. Even the coercive methods could have also been resorted to, if in the opinion of the court the said witness was evading his service. Therefore, in these circumstances and the objective behind the aforesaid provision. the impugned order passed by the learned trial court 6 and affirmed by the learned Additional Sessions Judge, Solan, District Solan, cannot be sustained in the eyes of law. Thus, for the foregoing reasons, the instant petition is allowed and the impugned orders dated 17.1.2008 passed by the learned trial court and affirmed by learned Additional Sessions Judge on 26.5.2008 both are hereby quashed and set aside. The parties are hereby directed to be present before the learned trial court on 4.11.2008 and on that date the petitioner shall furnish the correct address of Head Constable Daulat Ram and the trial court shall make its every endeavour for procuring his presence and examine him as court witness as early as possible. The petition stands disposed of. September 29, 2008 (Surinder Singh),J. (D)