[2008] 14 S.C.R. 348

HANUMAN RAM """

II.

ti ~

THE STATE OF RAJASTHAN AND ORS. ~

(Criminal Appeal No. 1597 of 2008)

OCTOBER 13, 2008

[DR. ARIJIT PASAYAT AND J.M. PANCHAL, JJ.]

Code of Criminal Procedure, 1973 - s.311 - Scope and

~· \C

object of - Recalling/re-examination of witness - Held: Once

~~ c the witness is examined in-chief and cross-examined fully, such witness should not be recalled and re-examined to deny the evidence he had already given before Court, even though that witness had given an inconsistent statement before any other Court or forum subsequently - Penal Code, 1860 - ss. 147,

D 452, 364, 3021149 and 2011149.

Accused-Respondents 2 and 3 were facing trial u/ • ss.147, 452, 364, 302/149 and 201/149 of IPC. Various wity nesses including PWs 3 & 5 were examined and crossexamined in the case. PWs 3 & 5 were subsequently ex- E amined as prosecution witnesses before the Juvenile

Court as well in which one accused who claimed to be minor was tried.

Respondents 2 and 3 filed application before the Trial r

Court in terms of s.311 CrPC praying that PW5 and PW3 be re-called for cross-examination afresh with reference . :, Jo t to their statements before the Juvenile Court. The appli- /i~ cation was rejected. Respondents 2 and 3 filed petition under s.397 r/w s.401 of CrPC. The High Court allowed the petition and directed the Trial Court to re-call and re- G examine PWs 3 & 5. Hence the present appeal.

Allowing the appeal, the Court e

HELD:1.1. Section 311 of CrPC is manifestly in two

A-1parts. Whereas the word used in the first part is "may", H 348

HANUMAN RAM v. THE STATE OF RAJASTHAN 349 ..

AND ORS .

-... the second part uses "shall". In consequences, the first A

- "'" part gives purely discretionary authority to a Criminal Court and enables it at any stage of ari 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 B has already been recorded. On the other hand, the second part is mandatory and compels the Court to take any -.Jf_ 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 circumc stances 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 D manner in which it should be exercised. It is not only the

... '-r prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely neeessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the E truth by all lawful means and one of such means is the examination of witnesses of its own accord when for cer- . tain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak .. important relevant facts. [Para 6] [354-C-G] F

"J. 1.2. The object underlying s.311 of CrPC 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 G whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, ·.,.s.\ 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 prosecu- H

SUPREME COURT REPORTS


' section whieh applies 'to all: .proceedings; enquires' anc; f:: '' ':.:

~ trials under the Code , ild .empowers .Magistrte t~>:issue: '" ... . summonsld .. any witness~t:any'.stage~.()f sµch: pr; oc:eed- .. ''. ' rings,'frial' or ·nquhy. Jn 5~311.the signifiant expression B that occur$ is nat anystage C,)f inquir)t ortri~I o.rother.J)ro;.: .. · ·

ceeding under this Code;~~ It' is, however,' to be·. borne .in mind that Whereas the :.sectiott confers a very wide power on .he , qoyrt.''oo summoning witnesses, the 'd.iscretion . '~Y:~ . collfertd i$' to ~~:.~?Cr~:i$.ed ; judiciously, as the 'wide the. c power.'the greater fs.tht!"ne't:essity for applfoa.tion of judi;.

ciatmind. [Para 7][354.H, 3SSACl ". · ' ·· · ·, .. .. .... ' . . , 1.3. The:Section, is wholly diScret.ionary. 'The second .part of"it impses upon the Me1g1strate an obligation: it is; .that the 'Court sall summon and exatrt, ine au :persons,

'. "

D Whose eyidence appeal'S to be essential o the just dec; i". .. sion Of the cae.:_it is a Cardinal rule in the I.aw of evidence that the best available evidence should be brought before . y the Court. Ss.60, 64 and 91, of the 1ndian Evidence Act, 1872 are based on this rule. The Court.is not empowered under E the provisions of the Code to compel either the prosecu- tion 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, . F and can draw an. adverse inference. The Court will often have to depend on intercpted allegations l)lade by the . : .1-4 parties, r ()n inconclusive inference.from factS elicited in -1--··: the evidence. In such cases, the Court has to act under the sec()hd part of the section. Sometimes the examination of witnesses as directed by the Court may resultin what is . G thought to be '.'filling of loopholes": That is purely a sub".· ·

. I

.' . sidiary .factor and c:annot be taken into account. Whether the n'ew evidence is .essential or not must of course de- .·~. pend. on the facts of each case, and has to be determined

H by the Presiding Judge. [Para 8] [355 DH, 356 A]

HANUMAN RAM v. THE STATE OF RAJASTHAN 351

AND ORS.

1.4. The object of s.311 is to bring on record evidence A ~~ not only from the point of view of the accuseq 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 B is called by a Court arises not under the provision of s.311, but under the Evidence Act which gives a party the right

..J ~- 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 c give the right of cross-examination to the complainant.

[Para 9] [356 A-C]

1.5. Once the witness is examined in chief and crossexamined fully, such witness should not be recalled and re-examined to deny the evidence he had already given D before Court, even though that witness had given an inconsistent statement before any other Court or forum subsequently. In the present case, the High Court's view for accepting the prayer in terms of s.311 of CrPC does not have any legal foundation. In the facts of the case, the E High Court ought not to have accepted the prayer made by the accused persons in terms of s.311 of CrPC. [Para

10, 11] [357 B, F-G]

Jagat Raviv. State of Maharashtra AIR (1968) SC 178; Rama Paswan and Ors. v. State of Jharkhand (2007) 11 SCC F 191; lddar and Ors. v. Aabida and Anr. (2007) 11 SCC 211 ; Mishra/a/ and Ors. v. State of M.P & Ors. (2005) 10 SCC 701

- relied on.

CASE LAW REFERENCE

AIR (1968) SC 178 relied on Para 9

(2007) 11 sec 191

(2007) 11 sec 211

(2005) 1 o sec 101

relied on

relied on

relied on

Para 9

Para 9

Para 10

 A CRiMINALAPPELLATE JURISDiCTION: Criminal Appeal 7.- No. 1597 of 2008 ·

. B

From the final Judgment and Order dated 25/10/2007 of the High Court of Judicature for Rajasthan at Jodhpur in S.B.

Criminal Revision Petition No. 912 of 2007

Brij Bhusan for the Appellant. ·

Jatinder Kumar Bhatia and R.C .. Kohli for the Respondents. l

The Judgment of the Court was delivered by

C DR~ ARIJIT PASAYAT, J. 1. Leave granted.

2. Challenge in this appeal is to the judgment of the learned Singie Judge of the Rajasthan High Court, allowing the application filed by respondent nos.2 and 3. The said respondents had D questioned the correctness ofthE? order dated 14.8.2007 passed

by' the learned Additional Sessions Judge, (Fast Track), Parbatsar, rejecting the application made by the accused in terms of Section 311 of the Code of Criminal Procedure, 1973 (in short 'Code').

3. A brief refernce to the factual aspects would suffice:

The respondent nos.2 and 3 are facing trial for the commission of offences punishable under Sections 147, 452, 364,

- 302/149-and 201/149 of theJndian Penal Code, 1860 (in short

'IPC'). Various' witnesses were examined from time to time in- F eluding Nandaram (PW-5) and Bhopalaram,(PW-3). Nandaram was examined_ and cross-examined on 21st November, and Bhopalaram was examined and cross-examined on 7th June, ·

2006. One of the accused Shrikant was claimed to be a minor and because of thaf he Was tried before the Children's Court. In G that case also Bhopalaram was examined as a witness on 9th January, 2007. In his evidence Bhopalaram did not support the prosecution version. Similarly, Nandaram was examined be- . ~· fore the Children's Court sometime in November, 2006. An application was filed by the accused persons before the Trial Court H in terms of Section 311 of the Code with the prayer that

HANUMAN RAM v. THE STATE OF RAJASTHAN 353

AND ORS. [DR. ARIJIT PASAYAT, J.]

-"<:- Nandaram and Bhopalaram may be re-summoned for cross- A examination with reference to their statements before the Children's Court. The trial Court found the prayer to be not acceptable and rejected the same. An application under Section 397 read with Section 401 of the Code was filed before the High Court questioning the correctness of the order dated B 14.8.2007 rejecting the application made. The High Court by • +... its impugned judgment allowed the petition and directed the court below to recall and re""'examine Bhopalaram and.

Nandaram. The High Court for the purpose of accepting the prayer recorded as follows: c

"In the present case, it is not in disputethat Bhopalaram and Nandaram were examined as prosecution witnesses before the Children Court, Ajmer and their testimony in that case is certainly relevant in the case relating to the petitioners. The reliability of the witnesses is required to be D examined by the Court after hearing the arguments and at this stage it shall not be appropriate to apprehend that witnesses Bhopalaram and Nandaram would have been won over. In the peculiar facts and circumstances of the case I am of considered opinion that the court below erred E while rejecting the application preferred by the petitioners under Section 311 Cr.P.C. The court should have recalled Bhopalaram and Nandaram for cross examination afresh by invoking powers under Section 311 Cr.P.C."

"--._

4. Learned counsel for the appellant submitted that the High F i

\ Court ought not to have accepted the prayer as made because the parameters governing Section 311 of the Code had no application to the facts of the case. Learned counsel for the State supported the stand of the appellant. Learned counsel for the respondent nos. 2 and 3 submitted that ultimately the best evi- G dence has to be brought on record for doing justice and the High Court's order, therefore, does not suffer from any infirmity.

5. Reference may be made to Section 311 of the Code which reads as follows: H

"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 8 as a witness or recall and re-examine any person if his evidence

' -

appears to it to be essential to the just decision of the case." A _.,.

6. The section is manifestly in two parts. Whereas the word used in the first part is "may'', the second part uses "shall". In c 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 D 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 E 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 F 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 G 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 H

~ {

-4W

HANUMAN RAM v. THE STATE OF RAJASTHAN 355

AND OR$. [DR. ARIJIT PASAYAT, J.] iif ambiguity in the statements of the witnesses examined from ei- A ther 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 prosecu- B tion and not that of the accused. The section is a general section

. ~- which applies to all proceedings, enquires and trials 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 inc quiry 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 E 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 F '\ 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 G elicited in the evidence. In such cases, the Court has to act under

l-'' 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 es- H

A sential or not m.ust of course depend on the facts of each case, and has to be qetermined by the Presiding Judge.

9, 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 c; ilso from the point of view of the orderly society. If a 8 witness called by Court gives evidence against the complainant he should be allowed a.n opportunity to cross-examine. The right to cross-examine a witness who i.s 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.

C 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 Raviv. State of Maharashtra (AIR 1968 SC 178), Rama Paswan and Ors. v.

D State of Jharkhand (2007 (11) SCC 191) and lddar and Ors. v.

Aabida and Anr. (2007 (11) SCC 211).

10. In Mishra/a/ and Ors. v. State of M.P & Ors. (2005

(10) SCC 701 ), this Court observed inter alia as follows:

"5. The learned counsel for the appellants seriously attacked the evidence of PW 2 Mokam Singh. This witness was examined by the Sessions Judge on 6.2.1991 and cross-examined on the same day by the defence counsel.

Thereafter, it seems, that on behalf of the accused persons an application was filed and PW-2 Mokam Singh was recalled. PW-2 was again examined and cross-examined on 31. 7 .1991. It may be noted that some of the persons who were allegedly involved in this incident were minors and their case was tried by the Juvenile Court. PW 2 Mokam Singh was also examined as a witness in the case before the Juvenile Court. In the Juvenile Court, he gave evidence to the effect that he was not aware of the persons who had attacked him and on hearing the voice of the assailants, he assumed that they were some Banjaras. Upon recalling, PW-2 Mokam Singh was

~· ,....,-,

HANUMAN RAM v. THE STATE OF RAJASTHAN 357

AND ORS. [DR. ARIJIT PASAYAT, J.]

confronted with the evidence he had given later before the A Juvenile Court on the basis of which the accused persons were acquitted of the charge under Section 307 IPC for having made an attempt on the life of this witness."

6. In our opinion, the procedure adopted by the Sessions Judge was not strictly in accordance with law. Once the witness 8

was examined in-chief and cross-examined fully; such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other

court or forum subsequently. A witness could be confronted only C with a previous statement made by him. At the time of examination of PW-2 Mokarn Singh on 6.2.1991, there was no such previous statement and the defence counsel did not confront him with any statement alleged to have be:en made previously; This witness must have given some other vers"tori before the Juvenile D Court for extraneous reasons.and he should.not have been given a further opportunity at a later stage to completely efface the evidence already given by him under oath. The courts have to follow the procedures strictly and cannot allow a witness to escape the

legal action for giving false evidence before the court on mere E explanation that he had given it under the pressure of the police or some other reason. Whenever the witness speaks falsehood in the court, and it is proved satisfactorily, the court should take a serious action against such witnesses."

11. The factual scenario in Mishri Lal'§. case (supra) has F great similarity with the facts of the present case. The High Court's view for accepting the prayer in terms of Section 311 of the Code does not have any legal foundation. In the facts of the case, the High Court ought not to have accepted the prayer made by the accused persons in terms of Section 311 of the Code.

G Above being the position, we set aside the impugned order of the High Court.

12. The appeal is allowed accordingly.

B.B.B.

Appeal allowed.