TMI Blog2018 (3) TMI 1955X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 311 Cr.P.C. to summon any person or witness or examine any person already examined can be exercised at any stage provided the same is required for just decision of the case. A fair trial is main object of criminal jurisprudence and it is duty of court to ensure such fairness is not hampered or threatened in any manner. It has been further held in the aforesaid judgments that fair trial entails interests of accused, victim and society and therefore, grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right - In the case at hand, there is no dispute that complainant was cross-examined by accused but perusal of Annexure P-3 i.e. cross-examination, conducted upon complainant clearly suggests that counsel representing accused failed to cross-examine complainant on material points. Though, accused by way of cross-examination of complainant has made an endeavour to prove that no cheque was issued by him but no suggestion qua the same was put by the counsel to the complainant. Similarly, suggestion was put to the complainant that accused had not signed the cheque but signatures on cheque were never put to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 accused had received a message that his mother was unwell, he hurriedly concluded the cross-examination and in this process inadvertently omitted to put aforesaid suggestions to the complainant. 4. Aforesaid prayer having been made by accused was vehemently opposed by the complainant by way of reply (Annexure P-6). Complainant alleged that the application has been filed with a view to fill up lacuna in the defence and with a view to linger on the proceedings. Complainant further claimed that she was cross-examined at length on all the aspects averred in the application as such, application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the witness, has necessarily weakened the case of accused to the benefit of complainant and as such, aforesaid omission which is/was not bonafide cannot be allowed to be corrected/rectified by learned court below by way of re-examination of the aforesaid witness. 7. I have heard the learned counsel for the parties and gone through the record of the case carefully. 8. Before ascertaining correctness of aforesaid submissions having been made by the learned counsel for the parties vis- -vis impugned order passed by the learned court below, this Court deems it proper to take note of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 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 and not that of the accused. The section is a general section which applies to all proceedings, enquiries 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 wider the power the greater is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 311 Cr.P.C. to summon any person or witness or examine any person already examined can be exercised at any stage provided the same is required for just decision of the case. It may be profitable to take note of the following paras of the judgment:- 14. A conspicuous reading of Section 311 Cr.P.C. would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression any has been used as a pre-fix to court , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne 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 the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction. (Emphasis added) 15.2 In the decision reported in Mohanlal Shamji Soni v. Union of India and another - 1991 Supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 and not that of the accused. The section is a general section which appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a party, various other decisions of this Court were referred to and the position has been stated as under in paragraphs 15 and 16: 15. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case? b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated. c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and reexa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso 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'ble Apex Court in Mannan SK and others v. State of West Bengal and another AIR 2014 SC 2950, wherein the Hon'ble Court has held as under:- 10. The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. 15. In the case at hand, there is no dispute that complainant was cross-examined by accused but perusal of Annexure P-3 i.e. cross-examination, conducted upon complainant clearly suggests that counsel representing accused failed to cross-examine complainant on material points. Though, accused by way of cross-examination of complainant has made an endeavour to prove that no cheque was issued by him but no suggestion qua the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 or relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. 22. Suggestions proposed to be put to complainant in the event of her recall, certainly relate to questions already put to her in cross-examination as such, it cannot be said that anything new is sought to be put to the complainant to her disadvantage. 23. Consequently, in view of detailed discussion made herein above as well as law laid down by Hon'ble Apex Court an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
