TMI Blog2018 (11) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... ed or not or whether the pronote is the same pronote as is alleged to have been executed is a matter of trial and this Court would refrain from giving any definitive opinion upon the same. However, what appears to have clearly been ignored by the learned trial Court while rejecting the application is the salutary provision of Section 311 is that it has failed to adhere to the well known adage that every trial is a voyage in which quest for truth is the goal. Petition allowed. - Cr. MMO No. 364 of 2018 - - - Dated:- 2-11-2018 - Mr. Justice Tarlok Singh Chauhan, Judge For the Petitioner : Mr. Mohan Sharma, Advocate. For the Respondent : Mr. B. R. Sharma, Advocate. Tarlok Singh Chauhan, Judge (Oral). Aggrieved by the rejection of application under Section 311 Cr.P.C., the petitioner has filed the instant petition. 2. A complaint at the instance of the petitioner under Section 138 of the Negotiable Instrument Act is pending adjudication before the learned trial Magistrate. It was claimed therein that respondent had borrowed a sum of ₹ 72,000/- but had not returned the same and had executed an agreement and also pronote acknowledging the receipt of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall . In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Court and enables it at any stage of enquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (1) to summon any person as a witness, or (2) to examine any person in attendance, though not summoned as a witness, or (3) to recall and re-examine any person already examined. 8. The second part which is mandatory imposes an obligation on the court - (1) to summon and examine, or (2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 9. The very usage of the words such as any court , at any stage , or of any enquiry, trial or other proceedings , any person and any such person clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power under this section and it should not be used for filling up the lacuna left by the prosecution or by 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 rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties . (emphasis supplied) 29. In Rajendra Prasad v. Narcotic Cell (1999) 6 SCC 110 occasion arose to appreciate the principles stated in Mohanlal Shamji Soni (supra). The two-Judge Bench took note of the observations made in the said case which was to the effect that while exercising the power under Section 311 of CrPC, the court shall not use such power for filling up the lacuna left by the prosecution . Explaining the said observation Thomas, J. speaking for the Court observed: (Rajendra Prasad Case 25, SCC P.113, para 8) 8.Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, as it is the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as filling in a lacuna in the prosecution case unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused resulting in miscarriage of justice. Be it stated, in the said case the court came to held that summoning of the witnesses was necessary for just and fair decision of the case and accordingly it allowed the appeal and set aside the order passed by the High court. 33. In Rajaram Prasad Yadav v. State of Bihar and another (2013) 14 SCC 461 the Court after referring to Section 311 CrPC and Section 138 of the Evidence Act observed that Section 311 CrPC vest widest powers in the court when it comes to the issue of summoning a witness or to rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. 17.6. The wide discretionary power should be exercised judiciously and not arbitrarily. 17.7. The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. x x x x x x x x x 17.10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. 17.11. The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by choice of a litigant. Taken to its logical end, the principle that a retrial must follow on every change of a counsel, can have serious consequences on conduct of trials and the criminal justice system. The witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases such as the present one. It can result in undue hardship for the victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross- examination. We respectfully agree with the aforesaid exposition of law. 36. Keeping in mind the principles stated in the aforesaid authorities the defensibility of the order passed by the High Court has to be tested. We have already reproduced the assertions made in the petition seeking recall of witnesses. We have, for obvious reasons, also reproduced certain passages from the trial court judgment. The grounds urged before the trial court fundamentally pertain to illness of the counsel who was engaged on behalf of the defence and his inability to put questions with regard to weapons mentioned in the FIR and the weapons that are referred to in the evidence of the witnesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, Awake! Arise! . There is a constant discomfort. 38. Yet again, in Gurnaib Singh v. State of Punjab (2013) 7 SCC 108, the agony was reiterated in the following expression: (SCC p.124, para 35) 35. We have expressed our anguish, agony and concern about the manner in which the trial has been conducted. We hope and trust that the trial courts shall keep in mind the statutory provisions and the interpretation placed by this Court and not be guided by their own thinking or should not become mute spectators when a trial is being conducted by allowing the control to the counsel for the parties. They have their roles to perform. They are required to monitor. They cannot abandon their responsibility. It should be borne in mind that the whole dispensation of criminal justice at the ground level rests on how a trial is conducted. It needs no special emphasis to state that dispensation of criminal justice is not only a concern of the Bench but has to be the concern of the Bar. The administration of justice reflects its purity when the Bench and the Bar perform their duti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... just decision of the case, Section 319 authorizes a Court to proceed against any person, who though not made an accused appears, in course of the inquiry or trial, to have committed the same and can be tried together. These two provisions of the Code explicitly accoutre a Court to summon a material witness or examine a person present at any stage of any inquiry, trial or other proceeding, if it considers it to be essential to the just decision of the case and even proceed against any person, though not an accused in such enquiry or trial, if it appears from the evidence available that he had committed an offence and that he can be tried together with the other accused persons. 5. Yet, again the scope of Section 311 Cr.P.C. was a subject matter of recent decision of the Hon ble Supreme Court in Ratanlal versus Prahlad Jat and others AIR 2017 SC 5006 wherein it was observed as under:- 17. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignificant expression that occurs is at any stage of any 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 wider the power the greater is the necessity for application of judicial mind . 20. In State (NCT of Delhi) v. Shiv Kumar Yadav Anr., (2016) 2 SCC 402 : (AIR 2015 SC 3501), it was held thus:- Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary for ensuring fair trial is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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