RAMA PASWAN AND ORS.

STATE OF JHARKHAND

APRIL 13, 2007

[DR. ARIJIT PASA Y AT AND D.K. JAIN, JJ.]

Penal Code, 1860; Ss. 376/Code of Criminal Procedure, 1973; Ss. 311, 313 and 320: ..

Criminal trial:

Rape-Examination of witnesses-Recording of evidence-Recalling of victim for further examination at the stage of argument on the ground that

the dispute settled outside the Court-S.311 Cr. P.C.-Scope and abmit of- Held: In terms of provisions under Section 3ll Cr.P.C. a duty is cast upon D the <; ourt to arive at the truth by all lawful means including examination of witnesses by calling any such witnesses-The object is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record leaving ambiguity in the statement of the witness/ witnesses examined-Since a very wide discretion is conferred on the Court on summoning the witnesses, it is required to be exercised judiciously- E Besides, in terms of cardinal rule in law of evidence, the best available evidences should be brought before the Court-Though, the Court is not empowered to compel either the prosecution or the defence to examine any particular witness/witnesses, but the Courts often have to depend on intercepted allegations made by the parties on inconclusive inference drawn F from facts elicited in the evidence-In such cases, Courts have to act under the second part of Section 311 Cr.P.C.-Since offence u/s. 376 !PC is not compoundable in terms of S. 320 Cr.P.C., Courts below rightly rejected the prayer for calling the victim/PW4 for re-examination-Evidence Act, 1872.

An F.l.R. was lodged by the informant alleging that accused committed G rape of PW 4, the victim. The dat~ of occurrence was stated to be 30.5.1992.

The charge sheet was filed by the Police on 29.9.1994. Trial Court had ,} examined witnesses after framing of charges from 1994 to 2004. On 18.5.2004 the trial court directed the production of further witnesses, if any.

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A Since no prosecution witness was present on 18.5.2004, 28.5.2004 and

10.6.2004, evidence of prosecution was closed. The statement of accused f persons was recorded under Section 313 of the Code of Criminal Procedure,

1973. The evidence of the defence witnesses was recorded between 25.6.2004 and 13.12.2004. At the stage of argument, an application purported to be under

Section 311 of the Code was filed for recalling the victim for further cross examination on the ground that the parties have settled the dispute outside the Court and also the informant could not identify the persons as crime was committed in darkness. The trial court dismissed the application. Later, an application in terms of Section 482 Cr.P.C. was filed before the High Court - which was dismissed by the impugned order. Hence the present appeal. c Appellant contended that when parties have settled the disputes, continuance of the proceeding would not be in the interest of the justice and the High Court should have exercised jurisdiction under Section 482 of the Code.

D Dismissing the appeal, the Court

HELD: 1.1. In terms of Section 31 t Cr.P.C., 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 E a position to speak important relevant facts. [Para 71 (88-A]

1.2. 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 F is essential to the just decision of the case. [Para 8) [88-B) ' '. 1.3. Section 311 Cr.P.C. is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings,

G trial or enquiry. The significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under the 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 wider the power the greater is the necessity for application of judicial mind. [Para 8) (88-C-E] H

RAMAPASWANv. STATE OF JHARKHAND 85 '

1.4. It is cardinal rule in the law of evidence that the best available A evidence should be brought before the court. Section 60, 64 and 91 of the Evidence Act, 1872 are based on this rule. The court is not empowered under the provisions of the Code to compel either the prosecution or the reference 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 B 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 l elicited in the evidence. In such cases, the court has to act under tl:e second part of Section 311 Cr.P.C. Sometimes the examinations of witnesses as directed by the court may result in what is brought to be "filling ofloopholes". c 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.

[Para 9) (88-F-H; 89-A)

1.5. The object of Section 311 is to bring on record evidence not only D from the point of view of the accused and the prosecution but also from the point of view of the orderly society. [Para IO) (89-B)

1.6. The right to cross-examine a witness who is called by a court arises not under the provisions 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. E Since a witness summoned by the court could not be termed a witness of any particular party, the court should give right of cross-examination to the complainant. [Para IO) (89-C)

Jamatraj Kewaliji Govani v. State of Maharashtra, AIR (1968) SC 178, relied on.

F "! 2.l. Considering the ambit of Section 311 of the Code, it does not appear to be a case where any interference is called for. What is the effect of evidence already recorded shall be considered by the trial court. Since Section 376 IPC is not compoundable in terms of Section 320 of the Code, the trial court and the High Court rightly rejected the prayer. [Para ll) (89-D] G

2.2. No opinion on the merits of the case has been expressed. ,.) [Para ll] [89-D)

~ CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 554 of 2007 of2007.

From the Judgment and Order dated 29.07.2005 of the High Court of Jharkhand at Ranchi in Criminal Revision No. 437 of2005.

Ajit Kumar Pande for the Appellants.

Ajit Kumar Sinha for the Respondent.

The Judgment of the Court was delivered by

DR. ARIJIT PASA YAT, J. 1. Leave granted.

2. Appellants call in question legality of the order passed by a learned C Single Judge of the Jharkhand High Court dismissing the petition filed by the appellants.

3. Background facts in a nutshell are as follows:

Alleging that PW4 (hereinafter referred to as the victim) was subjected D to rape, attracting punishment under Section 376 of the Indian Penal Code,

1860 (in short the 'IPC'). First Information Report (in short the "FIR') was lodged by the informant. The date of occurrence was stated to be 30.5.1992.

The charge sheet was filed on 29.9.1994. The examination of witnesses after framing of charges continued from 1994 to 2004. After examination of several E witnesses on 18.5.2004 the trial court directed the production of further witnesses, if any. Since no prosecution witness was present on 18.5.2004, 28.5.2004 and 10.6.2004, evidence of prosecution was closed. On 16.6.2004 the statement of accused persons was recorded under Section 313 of the Code of Criminal Procedure, 1973 (in short the 'Code'). The evidence of the defence witnesses was recorded between 25.6.2004 and 13.12.2004. Thereafter the F matter was placed for argument. At this stage an application purported to be under Section 311 of the Code was filed for recalling of the victim for further cross examination on the ground that the parties have settled the dispute outside the Court at the intervention of the well-wishers and also the informant could not identify the persons who allegedly committed the offence due to G darkness. The trial court rejected the application by order dated 1.4.2005. The trial court was of the view that in view of the circumstances indicated it would not be proper to allow the application of the accused for recalling the victim.

The same was accordingly dismissed. It was noted that the case was pending for trial for more than ten years. Application in terms of Section 482 of the Code was filed before the High Court which was dismissed by the impugned H order. The High Court was of the view that the compromise petition which

was annexed to the petition under Section 482 of the Code referred to purported A , compromise between the parties. The High Court noted that Section 376 of IPC is not compoundable and when the victim was examined and cross examined during trial, the prayer to recall the victim is not acceptable.

Accordingly the petition was rejected.

4. In support of the appeal, learned counsel for the appellants submitted B

that when parties have settled the disputes continuance of the proceeding would not be in the interest of the justice and the High Court should have exercised jurisdiction under Section 482 of the Code.

5. Learned counsel for the State on the other hand supported the orders c passed by the trial court and the High Court.

6. The scope and ambit of Section 311 of the Code, which reads as follows, needs to be noted:

"311. Power to summon material witness, or examine person present. D

- 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 a 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." E

7. The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequence, 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 anyone as a witness, or (b) to examine any person present in the court, or ( c) to recall F 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 enabling provision, and in certain circumstances imposing on the court the duty of examining a G '

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 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 H

A 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.

8. 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 C 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 of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or 'enquiry.

D In Section 311 the significant expression that occurs is "at any stage of any inquiry or trial or other proceeding nder 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 wider the power the greater is the necessity for application E of judicial mind.

9. 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

just decision of the case. It is a cardinal rule in the law of evidence that p the best available evidence should be brought before the court. Sections 60,

64 and 91 of the Evidence Act, 1872 (in short 'the 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 G 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 i... 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 H 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 A essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge.

10. The object of Section 311 is to bring on record evidence 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 the court gives B 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 provisions of Section 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is not liis own witness. Since a witness summoned by the court could not be termed a C witness of any particular party, the court should give the right of crossexamination to the complainant. These aspects were highlighted in Jamatraj Kewalji Govani v. State of Maharashtra, AIR {1968) SC 178.

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11. Considering the ambit of Section 311 of the Code, it does not appear to be a case where any interference is called for. What is the effect of D evidence already recorded shall be considered by the trial court. Since Section 376 !PC is not compoundable In terms of Section 320 of the Code, the trial court and the High Court rightly rejected the prayer. We find no scope for interference in the appeal. Our non-interference shall not be construed as we have expressed any opinion on the merits of the case.

The appeal is dismissed.

S.K.S.

Appeal dismissed.