TMI Blog2008 (10) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... itness 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. The factual scenario in Mishri Lal's case [ 2005 (5) TMI 697 - SUPREME COURT] has 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. An application was filed by the accused persons before the Trial Court in terms of Section 311 of the Code with the prayer that Nandaram and Bhopalaram may be re-summoned for cross- 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 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 if his evidence appears to it to be essential to the just decision of the case. 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court to summon a witness under the Section merely because the evidence supports the case for the prosecution 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused 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 1968CriLJ231, Rama Paswan and Ors. v. State of Jharkhand : 2007CriLJ2750 and Iddar a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 with a previous statement made by him. At the time of examination of PW-2 Mokam 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 been made previously. This witness must have given some other version before the Juvenile 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 leg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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