Crl.R.No.2214 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.R.No.2214 of 2010 (O&M) Date of Decision: August 12, 2010 Bijender .....Petitioner v. State of Haryana .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Harkesh Manuja, Advocate for the petitioner. ...... RAM CHAND GUPTA, J.(Oral) The present revision petition has been filed under Section 311 Cr.P.C. against order dated 4.8.2010, passed by learned Additional Sessions Judge, Panipat, vide which application of the accused for recalling prosecutrix for her further cross-examination was disallowed. I have heard learned counsel for the revision-petitioner and have gone through the whole record carefully. It is pertinent to reproduce Section 311 Cr.P.C. under which the application was moved and the impugned order was passed. The same 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 recall 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.” While interpreting the said provision of Section 311 Cr.P.C., Hon'ble Apex Court in Hanuman Ram vs. The State of Rajasthan and ors. 2008 (4) RCR (Criminal) 823 observed as under: Crl.R.No.2214 of 2010 (O&M) -2- “6. The Section is manifestly in two parts. Whereas the word used in the first part is “may”' the second part uses “shall”. In consequences, the first part gives purely discretionary authority to a Criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon any one as a witness, or (b) to examine any person present in Court, or (c ) 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 aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the Court by duty of examining a material witness who would not be 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 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. 7. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the Crl.R.No.2214 of 2010 (O&M) -3- accused. The section is a general section which applies to all proceedings, enquiries and trial under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is “at any stage of inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wide the power the greater is the necessity for application of judicial mind. 8. As indicated above, the Section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: It is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court. Sections 60, 64 and 91 of the Indian Evidence Act, 1872 (in short `Evidence Act'), are based on this rule. 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 side. This must be left to the parties. But in weighing the evidence, the Court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The Court will often have to depend on intercepted allegations made by the parties, or 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 by the Court may result in what is thought to be “filling of loopholes”. That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge. 9. The object of Section 311 is to bring on record evidence Crl.R.No.2214 of 2010 (O&M) -4- not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by Court gives evidence against the complainant he should be allowed an opportunity to cross- examine. The right to cross-examine a witness who is called by a Court arises not under the provision of Section 311, but under the Evidence Act which gives a party the right to cross- examine a witness who is not his own witness. Since a witness summoned by the Court could not be termed a witness of any particular party, the Court should give the right of cross- examination to the complainant. These aspects were highlighted in Jagat Ravi v. State of Maharashtra, (AIR 1968 SC 178), Rama Paswan and Ors. v. State of Jharkhand, 2007 (2) RCR (Criminal) 717: 2007 (2) RAJ 733: (2007(11) SCC 191) and Iddar and ors. vs. Aabida and anr., 2007(3) RCR (Criminal) 909: 2007 (4) RAJ 191: (2007(11) SCC 211).” On the same point reference is also made to another judgment of Hon'ble Apex Court rendered in Himanshu Singh Sabharwal vs. State of M.P. and ors. 2008 (2) RCR (Criminal) 267, wherein it was observed as under: “16. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e., truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or Crl.R.No.2214 of 2010 (O&M) -5- pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Court could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness. 17. The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The Section consists of two parts, i.e., (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution. In Mohan Lal v. Union of India 1991 (3) RCR (Criminal 182 : (1991 Supp. (1) SCC 271) this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the word such as, `any Court' `at any stage', or `any enquiry or trial or other proceedings' `any person' and `any such person' clearly spells out that the Section has expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers 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 any discretion but obligates and binds the Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case - `essential', to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the Section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is Crl.R.No.2214 of 2010 (O&M) -6- necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth.” Hence, in view of this legal proposition, this Court is to see as to whether learned trial trial Court has committed any illegality in dismissing the application of the accused for recalling the prosecutrix, who is just 9-10 years old child for further cross-examination. Accused was represented by his counsel appointed by the Court as amicus curiae. Prosecutrix was sufficiently cross-examined on behalf of the accused. Power under Section 311 Cr.P.C. cannot be exercised to harass a witness that too a minor child aged 9-10 years of age. The present application has been filed after father of prosecutrix, mother of prosecutrix and brother of prosecutrix did not support the prosecution version. Hence, learned trial Court has rightly observed that application for recalling the prosecutrix again is not a bona fide one. No ground for recalling the prosecutrix for further cross-examination is made out. Hence, the present petition is dismissed being devoid of any merit. 12.8.2010 (Ram Chand Gupta) meenu Judge