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TMI Blog2018 (3) TMI 1955X X X X Extracts X X X X X X X X Extracts X X X X ..... s", complainant was compelled to initiate proceedings under Section 138 of the Act ibid in the competent court of law. Complainant, by way of an affidavit tendered her evidence in support of her claim put forth in the complaint. Accused also cross-examined the complainant, as is evident from Annexure P-3. 3. After conclusion of evidence of complainant, an application came to be filed on behalf of the accused under Section 311 CrPC, praying therein to recall the complainant for cross-examination. Accused averred in the application that complainant needs to be cross-examined on the point that the cheque was never issued by the accused and complainant had failed to prove that it was in discharge of a legally enforceable debt. Accused also stated in the application that factum with regard to signatures on the cheque could not be put to the complainant as such, she needs to be cross-examined qua aforesaid aspect of the matter. By way of application referred herein above, accused also sought cross-examination of the complainant on the question as to what was the source of money allegedly lent by her to the accused. Since at the time of cross-examination, learned counsel representing acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng cryptic and contrary to provisions of law contained in Section 311 CrPC and judgment rendered by this Court, deserves to be quashed and set aside. 6. Mr. Naveen K. Bhardwaj, learned counsel appearing for the complainant supported impugned judgment and contended that there is no illegality and infirmity in the same and as such, same deserves to be upheld. While fairly stating that in terms of Section 311, court enjoys vast power to summon/re-examine or recall a witness at any stage of proceedings, learned counsel contended that such power cannot be exercised by a court to permit the applicant to fill up lacuna. He further contended that explanation rendered in the application for re-examination of complainant is not at all plausible because all the questions sought to be put to complainant in the event of her re-examination have been already asked in the cross-examination held earlier. Mr. Bhardwaj further contended that change of counsel or his inability to ask material question during cross-examination cannot be a ground to recall a witness. Lastly, Mr. Bhardwaj contended that omission on the part of accused to put suggestions, which are sought to be put by way of recalling th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econd part is mandatory that casts a duty upon court to re-examine or recall or summon a witness at any stage if his/her evidence appears to be essential for just decision of case because, definitely the underlying object of aforesaid provision of law is to ensure that there is no failure of justice on account of mistake on the part of either of parties in bringing valuable piece of evidence or leaving an ambiguity in the statements of witnesses examined from either side. 10. Hon'ble Apex Court in Zahira Habibullah Sheikh (5) and another v. State of Gujarat and others (2006)3 SCC 374 has held as under:- "27. 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 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 prosecution a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alled 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 Jamat Raj Kewalji Govani v. State of Maharashtra, (AIR 1968 SC 178). 30. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operative principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences. 11. Hon'ble Apex Court in Raja Ram Prasad Yadav v. State of Bihar and another, (2013)14 SCC 461, has held that power under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution. 15. In this context, we also wish to make a reference to certain decisions rendered by this Court on the interpretation of Section 311 Cr.P.C. where, this Court highlighted as to the basic principles which are to be borne in mind, while dealing with an application under Section 311 Cr.P.C. 15.1 In the decision reported in Jamatraj Kewalji Govani v. State of Maharashtra - AIR 1968 SC 178, this Court held as under in paragraph 14:- "14. It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the court exercises the power under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nagar Haveli and Anr. v. Fatehsinh Mohansinh Chauhan - 2006 (7) SCC 529, the decision has been further elucidated as under in paragraph 15:- "15. A conspectus of authorities referred to above would show that the principle is well settled that the 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, this being 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." (Emphasis supplied) 15.5 In Iddar & Ors. v. Aabida & Anr. - AIR 2007 SC 3029, the object underlying under Section 311 Cr.P.C., has been stated as under in paragraph 9:- "9...27. The object underlying Section 311 of the Code is that there may not be failure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, 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 defend himself." (Emphasis in original) 15.7 In a recent decision of this Court in Sheikh Jumman v. State of Maharashtra - (2012) 9 SCALE 18, the above referred to decisions were followed. 16. Again in an unreported decision rendered by this Court dated 08.05.2013 in Natasha Singh v. CBI (State) - Criminal Appeal No. 709 of 2013, where one of us was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as this is a constitutional, as well as a human right. Thus, under no circumstances can a person's right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. (Vide Talab Haji Hussain v. Madhukar Purshottam Mondkar & Anr., AIR 1958 SC 376; Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors. AIR 2004 SC 3114; Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., AIR 2006 SC 1367; Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) (2007) 2 SCC 258; Vijay Kumar v. State of U.P. & Anr., (2011) 8 SCC 136; and Sudevanand v. State through C.B.I. (2012) 3 SCC 387.)" 17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts: a) Whether the Court is right in thinking that the new eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. n) The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right." 12. At this stage, this Court deems it proper to place reliance upon judgment rendered by Hon&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cally held in the aforesaid judgment that adducing evidence in support of the defence is a valuable right and denial of such right would amount to denial of a fair trial. 14. Hon'ble Apex Court in Raja Ram Prasad Yadav v. State of Bihar and another, (2013)14 SCC 461, while culling out certain principles required to be borne in mind by the courts while considering applications under Section 311 has held that exercise of widest discretionary powers under Section 311 should ensure that judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts. Hon'ble Apex Court has further held that if evidence of any witness appears to be essential for the just decision of the case, it is the duty of the court to summon and examine or recall and re-examine any such person because very object of exercising power under Section 311 is to find out truth and render a just decision. Most importantly, in the judgment referred to herein above, Hon'ble Apex Court has held that court should bear in mind that no party in trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y observed in the order that there are no valid reasons to allow application at hand. 19. This Court is of the considered view that the impugned order is definitely not in consonance with the provisions of law reiterated in CrMMO No. 209 of 2017 titled Sardar Singh v. State of Himachal Pradesh. Argument advanced by learned counsel representing the complainant that re-examination of complainant would amount to filling up of lacuna therein, is also without any merit and deserves to be rejected. 20. Hon'ble Apex Court in Rajendra Prasad v. Narcotic Cell, has categorically held that a lacuna in prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. Corollary of such lapses or mistakes during trial/case cannot be understood to be lacuna, which a court cannot fill up. 21. It is quite apparent from aforesaid exposition of law that lacuna in prosecution must be understood as 'inherent weakness' or 'latent wedge' in the matrix of the prosecution. It has been further categorically held that if proper evidence was not adduced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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