Case: THE STATE REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE Vs. TR. N. SEENIVASAGAN

, though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under: (SCC pp. 746 & 748-49, paras 8 &15) 8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at any stage of any enquiry, or trial, or any other proceedings under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case. *** 15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as any court, at any stage, or or any enquiry, trial or other proceedings, any person and any such person clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case. (emphasis in original) 15. In the present case, the prosecution has sought to produce a copy of the relevant document pertaining to the approval granted by the Board of TANGEDCO on the record and to have it marked as an exhibit in the evidence, for which purpose PWs 1 and 11 were sought to be recalled. In its applications, the prosecution noted that these witnesses were required to mark the relevant document, which was crucial for the decision of the case since the respondent had taken a defense that this document had been signed by the Chairman of TANGEDCO without the Boards approval. In explaining the delay in filing the applications, the prosecution noted that it was due to the transfer of Special Public Prosecutor who was conducting the case. The relevant parts of the prosecutions application are reproduced below: It is submitted that the case was conducted by Additional Legal Adviser Tr.T.Panneerselvam and he was transferred as Deputy Director of Prosecution, Kancheepuram District and hence Tr.Pandiarajan, ADLA, HQ, DVAC, Chennai is posted as Special Public Prosecutor for conduction this case. … It is submitted that the Exhibit.Pl, the order of sanction itself shows that the order was issued by the Board. But the defence has taken a stand that the order was not issued by the Board and the same was issued by the Chairman who was not competent person to accord the sanction. It is submitted that at the time of filing the charge sheet the Investigation Officer has obtained the Approval Order of the Board and not submitted it before this Honble Court. It is submitted that in support of the contention of the prosecution it is necessary to mark the documents pertaining to the Board of TANGEDCO to satisfy this Honble Court for just decision of the case that the sanction was accorded in accordance with law and rules and regulations stated in the TANGEDCO. … It is submitted that recalling PW1 and PW11 for marking the documents pertaining to the Sanction cannot be termed as lacuna or to fill up the gap. But only to help this Honble Court for arriving just decision of the case. 16. Undoubtedly, we note that the respondent must have an opportunity to crossexamine these witnesses. Hence, we are not expressing any view on the merits of the submissions which were urged on behalf of the respondent by Mr Senthil Jagadeesan, in regard to the depositions of PWs 1 and 11, since these will have to be evaluated by the learned trial Judge. However, we are of the view that the rejection of the applications for recall under Section 311 was not in order.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]13. In our view, having due regard to the nature and ambit of Section 311 of the CrPC, it was appropriate and proper that the applications filed by the prosecution ought to have been allowed. Section 311 provides that any Court may, at any stage of any inquiry, trial or other proceedings under the CrPC, 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. The true test, therefore, is whether it appears to the Court that the evidence of such person who is sought to be recalled is essential to the just decision of the case.14. In Manju Devi v State of Rajasthan (2019) 6 SCC 203 , a two-Judge bench of this Court noted that an application under Section 311 could not be rejected on the sole ground that the case had been pending for an inordinate amount of time (ten years there). Rather, it noted that the length/duration of a case cannot displace the basic requirement of ensuring the just decision after taking all the necessary and material evidence on record. In other words, the age of a case, by itself, cannot be decisive of the matter when a prayer is made for examination of a material witness. Speaking for the Court, Justice Dinesh Maheshwari expounded on the principles underlying Section 311 in the following terms:10. It needs hardly any emphasis that the discretionary powers like those under Section 311 CrPC are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone. The principles underlying Section 311 CrPC and amplitude of the powers of the court thereunder have been explained by this Court in several decisions [ Vide Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271 : 1991 SCC (Cri) 595 ; Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999; Mina Lalita Baruwa v. State of Orissa, (2013) 16 SCC 173 : (2014) 6 SCC (Cri) 218; Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461 : (2014) 4 SCC (Cri) 256 and Natasha Singh v. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828] . In Natasha Singh v. CBI [Natasha Singh v. CBI, (2013) 5 SCC 741 : (2013) 4 SCC (Cri) 828] , though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under: (SCC pp. 746 & 748-49, paras 8 &15)8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at any stage of any enquiry, or trial, or any other proceedings under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as any court, at any stage, or or any enquiry, trial or other proceedings, any person and any such person clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case. (emphasis in original)15. In the present case, the prosecution has sought to produce a copy of the relevant document pertaining to the approval granted by the Board of TANGEDCO on the record and to have it marked as an exhibit in the evidence, for which purpose PWs 1 and 11 were sought to be recalled. In its applications, the prosecution noted that these witnesses were required to mark the relevant document, which was crucial for the decision of the case since the respondent had taken a defense that this document had been signed by the Chairman of TANGEDCO without the Boards approval. In explaining the delay in filing the applications, the prosecution noted that it was due to the transfer of Special Public Prosecutor who was conducting the case. The relevant parts of the prosecutions application are reproduced below:It is submitted that the case was conducted by Additional Legal Adviser Tr.T.Panneerselvam and he was transferred as Deputy Director of Prosecution, Kancheepuram District and hence Tr.Pandiarajan, ADLA, HQ, DVAC, Chennai is posted as Special Public Prosecutor for conduction this case.It is submitted that the Exhibit.Pl, the order of sanction itself shows that the order was issued by the Board. But the defence has taken a stand that the order was not issued by the Board and the same was issued by the Chairman who was not competent person to accord the sanction.It is submitted that at the time of filing the charge sheet the Investigation Officer has obtained the Approval Order of the Board and not submitted it before this Honble Court.It is submitted that in support of the contention of the prosecution it is necessary to mark the documents pertaining to the Board of TANGEDCO to satisfy this Honble Court for just decision of the case that the sanction was accorded in accordance with law and rules and regulations stated in the TANGEDCO.It is submitted that recalling PW1 and PW11 for marking the documents pertaining to the Sanction cannot be termed as lacuna or to fill up the gap. But only to help this Honble Court for arriving just decision of the case.16. Undoubtedly, we note that the respondent must have an opportunity to crossexamine these witnesses. Hence, we are not expressing any view on the merits of the submissions which were urged on behalf of the respondent by Mr Senthil Jagadeesan, in regard to the depositions of PWs 1 and 11, since these will have to be evaluated by the learned trial Judge. However, we are of the view that the rejection of the applications for recall under Section 311 was not in order.