TMI Blog2013 (5) TMI 964X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is wholly misconceived, and is not tenable in law as the accused has every right to adduce evidence in rebuttal of the evidence brought on record by the prosecution. The court must examine whether such additional evidence is necessary to facilitate a just and proper decision of the case. Furthermore, the same is not a case where if the application filed by the Appellant had been allowed, the process would have taken much time. In fact, disallowing the said application, has caused delay. No prejudice would have been caused to the prosecution, if the defence had been permitted to examine said three witnesses. Hence, The appeal succeeds and is allowed. The judgment and order of the Trial Court, as well as of the High Court impugned before us, are set aside. The application Under Section 311 Code of Criminal Procedure filed by the Appellant is allowed. - B.S. Chauhan and F.M. Ibrahim Kalifulla For The Appellant : Uday Lalit, Sr. Adv., Hari Shankar K., Kawal Nain and Aditya Verma, Advs. For The Respondents : S.P. Singh, Sr. Adv., Syed Tanweer Ahmad, Dinesh Kothari and B.V. Balaram Das, Advs. JUDGMENT B.S. Chauhan, J. 1. Leave granted. 2. This ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder dated 8.4.2013. Hence, this appeal. 4. Shri U.U. Lalit, learned senior Counsel appearing for the Appellant, has submitted that the FIR was lodged in 1998 and if the prosecution has taken more than a decade to examine 52 witnesses, and that if after the Appellant had closed her defence, the other accused had laid evidence in his defence, and that thereafter, without losing any time, the Appellant had preferred an application seeking permission to examine three witnesses in her defence, and had even given reasons for their examination, the same should not have been dismissed. The Trial Court has committed an error in appreciating the evidence which could have been provided by the said three witnesses in anticipation. It has also been stated that further, there was no delay on the part of the Appellant in moving the application. Had this application been allowed by the courts below, no prejudice would have been caused to the Respondent. Thus, the appeal deserves to be allowed. 5. On the contrary, Shri S.P. Singh, learned senior Counsel appearing for the Respondent, has opposed the appeal contending that the courts below have recorded a finding of fact to the extent that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope of Section 311 Code of Criminal Procedure, and held that it is a cardinal rule of the law of evidence, that the best available evidence must be brought before the court to prove a fact, or a point in issue. However, the court is under an obligation to discharge its statutory functions, whether discretionary or obligatory, according to law and hence ensure that justice is done. The court has a duty to determine the truth, and to render a just decision. The same is also the object of Section 311 Code of Criminal Procedure, wherein the court may exercise its discretionary authority at any stage of the enquiry, trial or other proceedings, to summon any person as a witness though not yet summoned as a witness, or to recall or re-examine any person, though not yet summoned as a witness, who are expected to be able to throw light upon the matter in dispute, because if the judgments happen to be rendered on an inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated. 10. In Rajeswar Prasad Misra v. The State of West Bengal and Anr. AIR 1965 SC 1887, this Court dealt with the ample power and jurisdiction vested in the court, with respect t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard apposite: In such circumstances, if the new Counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the Court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible. xxx xxx xxx xxx We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is nearly seven years old..... we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the Appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 15. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representative of Mideast (India) Limited, which was presented to Delhi Regional Office of UIICL and on the strength of the said false NOC the Insurance Company's Head Office at Chennai released a payment of ₹ 3.60 crores to Mideast (India) Limited vide cheque No. 454431 dated 8.3.96 which was credited to the account of Mideast (India) Limited. A sum of ₹ 15 lacs was retained out of the approved amount of ₹ 3.75 crores towards payment to PNB Capital Finance. 17. The Trial Court, while entertaining the application filed Under Section 311 Code of Criminal Procedure, had asked the Appellant to provide a brief summary of the nature of evidence that would be provided by the defence witnesses mentioned in the application, and in keeping with this, the Appellant had furnished an application stating that the Appellant wished to examine one Shri B.B. Sharma who was one of the panchnama witnesses, and who the prosecution had neither listed nor examined in court. Therefore, the Appellant wished to examine him in defence. The second person was Shri S.S. Batra, Company Secretary of the Appellant, as he was the best person to provide greater details of the company of whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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