TMI Blog2022 (8) TMI 1213X X X X Extracts X X X X X X X X Extracts X X X X ..... per the cross examination of the witnesses concerned, with regard to the service of legal notice it may be mentioned here that as per Annexure P-5 (the cross examination of CW-1 Rajinder Parshad) it is apparent that the question regarding service of notice had been put by the earlier counsel to the witness. Whether the complaint not having been filed by a lawful attorney? - HELD THAT:- The complaint has been filed by a Bank which is a juristic person being a company. A bank/company can deputy any officer of his choice to represent the bank with permission of the Court. The attorney holder Rajinder Parshad was allowed by the court to represent the bank vide order dated 26.07.2017. Once the court had already allowed the application for substitution of the attorney of Rajinder Parshad in place of the previous attorney then the question of complaint not having been filed by a lawful attorney and that question being needed to be put to the witness in re-cross examination does not arise. Apparently the application seems to have been filed with a view to further delay the proceedings. Petition dismissed. - CRM – M - 34596-2022 - - - Dated:- 17-8-2022 - HON'BLE MR. JUSTIC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mination was necessary and may be allowed. The reply to the application was submitted by the bank. It was contended that the officer of the Bank had been cross examined at length. The moving of the present application was just a delaying tactics as the accused had challenged every order of the Trial Court and had filed a number of applications at various stages of the proceedings which had been dismissed by the trial Court. Further the complaint had been filed in the month of January 2016 and both the accused had been declared proclaimed offender vide order dated 1.7.2016. Pursuant to being grant bail from April 2017 onwards the hearing was prolonged on one pretext or the other. It was thus contended that even otherwise the complaint was pending since January 2016 for more than 06 years and change of counsel was no ground for further cross examination/re-cross examination. Based on the respective pleadings of the parties, the application under Section 311 Cr.P.C. came to be dismissed vide order dated 06.04.2022 (Annexure P-8). It is this order which is under challenge before this Court. The Counsel for the petitioner contends that he seeks only one opportunity to further c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence appears to it to be essential to the just decision of the case. The words 'essential to the just decision of the case' are the key words. The court must form an opinion that for the just decision of the case recall or re-examination of the witness is necessary. Since the power is wide it's exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fill-up a lacuna because the line of demarcation is thin. It is for the court to consider all the circumstances and decide whether the prayer for recall is genuine. 11. Rather than referring to all the judgments which are cited before us, we would concentrate on Mohanlal Soni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 12. While dealing with Section 311 of the Code in Rajendra Prasad this Court explained what is lacuna in the prosecution as under: 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 the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. 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. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ured and learned State Counsel have placed reliance on the observations made by Hon'ble Supreme Court in Mohanlal Shamji Soni Vs. Union of India and another : 1991(3) RCR (Criminal) 182; Mannan Sk. And others Vs. State of West Bengal and another : 2014 (4) RCR (Criminal) 617 and Manohar Prajapat Vs. State of Madhya Pradesh: 2014 (6) RCR (Criminal) 163. 7. Section 311 of the Cr.P.C. which empowers the Court to summon material witness or examine person present reads as under:- Any court may, at any stage of any inquiry, trial or other proceedings 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 already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 8. In Godrej Pacific Tech. Ltd. Vs. Computer Joint India Ltd. 2008 (4) Criminal Court Cases 162 (Supreme Court) Hon'ble Supreme Court analyzed the provisions of Section 311 of the Cr.P.C. as under:- 7. The section is manifestly in two parts. Whereas the word used in the first part is may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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. 9. It is now well settled that application under section 311 of the Cr.P.C. for summoning of witnesses can be filed at any stage of trial even after final arguments but before the pronouncement of judgment and mere delay is not decisive of the question of summoning of witnesses. In Mohan Lal Shamji's Case (Supra) it was held that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both the sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation and fair play and good sense appear to be the only safe guides and that only requirements of justice command the examination of any person which would depend on the facts and circumstances of each case. 10. In Shailendra Kumar Vs. State of Bihar : 2002 (1) S.C.C. 655 it was held that a bare reading of section 311 of the Cr.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is the power of the Court to summon and examine or recall and re-examine any such person. d) The exercise of power under Section 311 Criminal Procedure Code should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. e) The exercise of the said power cannot be dubbed as filling in a lacuna in a 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. f) The wide discretionary power should be exercised judiciously and not arbitrarily. g) 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. h) The object of Section 311 Criminal Procedure Code simultaneously imposes a duty on the Court to determine the truth and to render a just decision. i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ka was necessary to prove the same at the time of recording of prosecution evidence. However, Dr. Priyanka was not cited in the list of prosecution witnesses by the Investigating Officer due to oversight and the omission could not be noticed by the Assistant Public Prosecutor at the time of recording of the prosecution evidence. As observed by Hon'ble Supreme Court in Rajendra Prasad's Case (Supra) an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No benefit can be allowed to the accused due to omission of the name of Dr. Priyanka in the list of prosecution witnesses and the prosecution can not be foreclosed from correcting the error/remedying the omission. Examination of Dr. Priyanka is necessary for obtaining proper proof of such facts which will lead to a just and correct decision of the case. No prejudice will be caused to the accused if Dr. Priyanka is allowed to be examined as the accused will be entitled to cross-examine her and also to produce evidence in rebuttal. A perusal of Section 311 Cr.P.C. along with the law cited (supra) would clearly establish that the Court has vast powers which can certainly be invoked to sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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