Court has reiterated the same principle after
analyzing Section 540 of the Code of Criminal
Procedure, 1898 as well as Section 311 Cr.P.C.
The Court held:
“The next important question is
whether Section 540 gives the court
carte-blanche drawing no underlying
principle in the exercise of the
extraordinary power and whether the
said Section is unguided, uncontrolled
and uncanalised. Though
Section 540 (Section 311 of the new
Code) is, in the widest possible terms
and calls for no limitation, either with
regard to the stage at which the powers
of the court should be exercised, or
with regard to the manner in which they
should be exercised, that power is
circumscribed by the principle that[30]
underlines Section 540, namely,
evidence to be obtained should appear
to the court essential to a just decision
of the case by getting at the truth by all
lawful means. Therefore, it should be
borne in mind that the aid of the
section should be invoked only with the
object of discovering relevant facts or
obtaining proper proof of such facts for
a just decision of the case and it must
be used judicially and not capriciously
or arbitrarily because any improper or
capricious exercise of the power may
lead to undesirable results. Further it is
incumbent that due care should be
taken by the court while exercising 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.”
“The principle of law that emerges
from the views expressed by this Court
in the above decisions is 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 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 the requirements of
justice command the examination of
any person which would depend on the
facts and circumstances of each case.”[31]
30. In Rajendra Prasad (supra), Supreme Court,
while examining power under Section 311
Cr.P.C. to recall or re-summon a witness,
reiterated the principle that power cannot be
exercised to fill up lacuna in prosecution case.
However, while construing the meaning of the
term “lacuna in prosecution case”, the Court
observed that oversight or mistakes during
conducting of a case cannot be understood as
lacuna and so can be corrected. The Court held:
“It is a common experience in
criminal courts that defence counsel
would raise objections whenever courts
exercise powers under Section 311 of
the Code or under Section 165 of the
Evidence Act, 1872 by saying that the
Court could not “fill the lacuna in the
prosecution case”. A lacuna in the
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. The adage “to err is human”
is the recognition of the possibility of
making mistakes to which humans are
prone. A corollary of any such latches
or mistakes during the conducting of a
case cannot be understood as a lacuna
which a court cannot fill up.
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 over sight
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 parties performed better.”
Taking into account the fact situation in the
instant case, while accepting the legal
proposition adumbrated in the verdict, in the
considered opinion of this Court, in the backdrop
of facts and circumstances of the instant case,
the judgment cannot render any assistance to
the petitioner.
Reportable
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
CRL. MISC. (PET.) (CRLMP) NO. 3661 of 2015
Sant Shri Asharamji Bapu V/s. State of Rajasthan
DATED : November 3, 2016
MR. JUSTICE P.K. LOHRA
Accused-petitioner, Sant Shri Ashasram
Bapu - a self proclaimed Godman, has laid this
misc. petition under Section 482 Cr.P.C. to assail
impugned order dated 17th of October 2015,[2]
passed by District & Sessions Judge, District
Jodhpur (for short, ‘learned trial Court’),
declining his prayer to recall eight prosecution
witnesses for their cross-examination and
consequently rejected the application under
Section 311 Cr.P.C.
2. The petitioner in his application, inter-alia,
averred that subsequent to launching of the
criminal prosecution against him, one FIR was
lodged at Police Station Nowabad, Jammu
bearing No.168 of 2013, which is having direct
nexus with the events of the present case. It is
also averred in the application that police in the
aforesaid FIR during investigation collected
mobile call recording, call details, records so
also oral evidence and finally filed charge-sheet
against the accused persons. Application further
unfolds a fact that in connection with the
aforesaid FIR certain original documents are
collected concerning age of the prosecutorix with
which she could not be earlier confronted when
she was subjected to cross-examination. While
asserting that when the statements of PW5
Prosecutorix, PW19 Rahul Sachan, PW21
Karamveer Singh and PW23 Mahendra Chawla
were recorded earlier, requisite material
particularly mobile phone recording, call details
and oral evidence was not available with the[3]
accused-petitioner and therefore these witnesses
could not be effectively cross-examined by the
defence counsel to confront them and to
impeach their testimony. It is in that
background, it is prayed in the application that
subsequent availability of the aforesaid material
has necessitated recalling of these prosecution
witnesses to enable defence to cross-examine
them in the light of that material for the just
decision of the case. A plea is also sought to be
raised at the behest of petitioner that application
under Section 311 Cr.P.C. cannot be rejected
solely on the ground of delay.
3. The petitioner has also made endeavour in
his application to castigate the prosecution for
concealing relevant and material facts for
craving leave to recall these witnesses in order
to facilitate unearthing truth in the matter.
Castigating the Investigating Officer, petitioner
has also pleaded in the application that for
soliciting necessary information about him,
investigating officer has also thoroughly surfed
the website of Ashram and continued its tirade in
this behalf till submission of charge-sheet in the
matter. A fact is also averred in the application
that investigating officer has incorporated
certain informations in the charge-sheet which
were collected from the website. For pleading[4]
all these facts essentially, the petitioner has
made an attempt to highlight partiality in the
investigation. That apart, some other facts are
also pleaded in the application for recalling all
these witnesses for cross-examination.
4. The application laid on behalf of petitioner is
contested by the prosecution and in its reply it is
pleaded by the prosecution that application is
not in accordance with the provisions of Section
311 Cr.P.C. The prosecution has submitted in
the return that power under Section 311 Cr.P.C.
lies with the Court and no party including
prosecution or the accused can invoke Section
311 Cr.P.C. as a matter of right. While
referring to the alleged material collected by
Jammu police during investigation of FIR No.168
of 2013, it is submitted by the respondent
prosecution that on the basis of alleged material
collected during investigation; viz., mobile
recording, call details, it is not possible to
express any opinion about reliability of the said
documents much less its authenticity in want of
disclosure of the source by the accusedpetitioner.
As regards, the documents collected
by Jammu police throwing light on the age of
prosecutorix, respondent prosecution has
specifically pleaded that this fact is absolutely
false and not tenable. It is also submitted in[5]
the reply by the respondent prosecution that all
the witnesses for whom accused-petitioner has
craved for recalling them, have been thoroughly
cross-examined by the defence counsels and
therefore, it is not at all necessary to recall
them for the just decision of the case. The
prosecution has also taken shelter of Section 33
(5) of the Protection of Children from Sexual
Offences Act, 2012 (POCSO Act) which mandates
that minor is not required to be called time and
again for examination by the Court so as to keep
identity of the minor secret. A reference is also
made to earlier order passed by the learned trial
Court on 9th of September 2015, whereby
application under Section 91 Cr.P.C., at the
behest of one of the accused Sharad, was
rejected. It is specifically pleaded in the return
that FIR No.168 of 2013, registered at Police
Station Jammu, is having no nexus whatsoever
with the present matter and as such there is no
reason much less plausible reason for recalling
the aforesaid prosecution witnesses for further
cross-examination.
5. Respondent prosecution, in its return, has
also castigated the accused-petitioner for
adopting dilatory tactics to prolong trial of the
case and to harass victim, her family members
and the prosecution witnesses. Joining issue[6]
with the petitioner on allegations concerning
partiality in the investigation, respondent
prosecution has submitted in the return that all
these allegations are false and fabricated. For
substantiating this plea, it is submitted by the
prosecution that at no point of time accused
persons have ever ventilated their grievances
against the investigating officer and furthermore
no endeavour was made at their behest in this
behalf to lay any petition before this Court or
before Hon’ble Supreme Court. While reiterating
that investigation in the matter has been
conducted fairly and impartially, the respondent
prosecution has pleaded that charges framed
against accused persons in the matter are not
interfered by this Court by rejecting petition of
the accused persons. The rest of the allegations
contained in the application are refuted by the
respondent prosecution with full emphasis at its
command with a positive assertion that
investigating agency has not concealed any
material and substantial fact while submitting
charge-sheet in the matter. A specific denial is
also incorporated in the reply that investigating
officer has surfed website of Ashram for
soliciting information.
6. It is also pleaded in the return that the FIR,
registered at Jammu, is having no proximity with[7]
the victim and her family members as well as
prosecution witnesses listed in the charge-sheet.
While referring to the prosecution witness Kiran
Jha Thakur, the respondent prosecution has
pleaded that she has been subjected to thorough
cross-examination by the defence. As regards
age of the victim, it is pleaded in the return that
authentic document, i.e., Matriculation
Certificate, of the victim is on record to show
her age. Lastly, it is pleaded that all these
witnesses have been thoroughly cross-examined
by the defence counsels and therefore it is not in
the interest of justice to recall these witnesses
inasmuch as accused persons are at liberty to
produce any documentary or oral evidence in
their defence. With these averments, the
prosecution craved for rejection of the
application.
7. The learned trial Court, after hearing the
rival contentions, by the order impugned
rejected the application of the accusedpetitioner.
While rejecting the prayer of the
petitioner, the learned trial Court has cited many
reasons including the reason that whole attempt
of the accused persons is to delay the trial.
8. Assailing the impugned order, learned
Senior Counsel submits that the learned trial[8]
Court has not made any endeavour to record its
finding while declining prayer of the petitioner
for recalling prosecution witnesses, more
particularly the factum of essentiality to recall
the witnesses for just decision of the case.
Learned Senior Counsel has, therefore,
strenuously urged that, sans this finding, the
impugned order is per se vulnerable. Mr.
Singhvi, learned Senior Counsel, would contend
that undeniably charge-sheet, against some of
the prosecution witnesses, is filed before the
Jammu Court after their cross-examination in
the instant case and ramification of this vital
fact on the just decision of the case is
completely eschewed by the learned trial Court
while declining prayer of the petitioner. Placing
heavy reliance on the call details, which is part
of the charge-sheet submitted before Jammu
Court, showing conversation between victim and
her parents with these prosecution witnesses,
who are accused before the Jammu Court,
learned counsel submits that it was very vital
aspect of the matter for acceding to the prayer
of petitioner. Buttressing arguments in this
behalf, learned Senior Counsel argues that
unfortunately the learned trial Court without
dilating on these pivotal questions has declined
the prayer of petitioner, which has resulted in
miscarriage of justice. [9]
9. Learned Senior Counsel has further urged
that petitioner is facing charge under the POCSO
Act wherein heavy burden lies on the accused to
dislodge presumption under Section 29 of the
Act, ought to have been considered by the
learned trial Court for ensuring fair trial in the
matter. Learned Senior Counsel further submits
that the call details, which are part of the
charge-sheet submitted before Jammu Court
against some of the prosecution witnesses are of
13th to 15th of August 2013 and the alleged
offence against the petitioner is of 15th of August
2015 as well as their proximity with victim and
her parents, prima facie, smacks of conspiracy
against the accused-petitioner, was apparently
very significant to persuade the learned trial
Court to recall the witnesses for further crossexamination.
Elaborating his submission in this
behalf, learned Senior Counsel contended that
despite such admitted facts the learned trial
Court has committed manifest error of law, in
declining to exercise its discretion, is sufficient
to vitiate the impugned order. Learned counsel
has vehemently argued that delay in completion
of trial itself cannot be a ground for declining
prayer of the petitioner inasmuch as it has not
benefited the petitioner, who is in judicial
custody since commencement of the trial.[10]
Moreover, according to the learned counsel, this
sort of reason cannot fetter the discretion of the
Court to recall a witness if recalling of witness is
necessary for the just decision of the case.
10. Learned counsel has urged that one of the
accused before Jammu Court, Mr. Pankaj Dubey,
was repeatedly interacting with the victim and
her parents in interregnum period from 13th of
August to 15th of August 2013 and admittedly he
is facing criminal prosecution before Jammu
Court as conspirator in falsely implicating the
accused-petitioner, were some of the facts
requiring cognizance of the learned trial Court to
recall all the prosecution witnesses for doing real
and substantial justice in the matter. Learned
counsel has also submitted that the documents
filed before Jammu Court with the charge-sheet
were not available with the defence, and
therefore, the prosecution witnesses could not
be confronted and impeached by the defence
counsel during their cross-examination, is clearly
apparent from the proceedings of the case as the
cross-examination was conducted much prior to
the filing of charge-sheet before Jammu Court.
He, therefore, submits that application
submitted by the petitioner was bonafide and
could not have been thwarted by the learned[11]
trial Court without recording its satisfaction in
terms of Section 311 Cr.P.C.
11. Learned Senior Counsel, while castigating
the prosecution for concealing material
informations from learned trial Court, more
particularly the relevant call details, contends
that denial of victim and her parents, for their
proximity with Pankaj Dubey during crossexamination,
has furnished a plausible ground to
the accused-petitioner for recalling all these
prosecution witnesses for further crossexamination
to ensure just decision of the case.
Lastly, learned Senior Counsel submits that fair
trial is a fundamental right of an accused under
Article 21 of the Constitution and Section 311
Cr.P.C. is a special provision empowering a
criminal court to summon a witness or recall/reexamine
any person already examined,
essentially meant for ensuring fair trial to the
accused to enable a Court for arriving at a just
decision, has been completely given go-bye by
the learned trial Court in passing the impugned
order. In support of his contentions, learned
Senior Counsel has placed reliance on following
legal precedents:
Mannan Shaikh & Ors. Vs. State of
West Bengal & Anr. [(2014) 13 SCC
59][12]
Jamatraj Kewalji Govani Vs. State of
Maharashtra [AIR 1968 SC 178]
Mohanlal Shamji Soni Vs. Union of
India & Anr. [1991 Supp (1) SCC
271]
Rajendra Prasad Vs. Narcotic Cell
[(1999) 6 SCC 110]
Hoffman Andreas Vs. Director of
Customs, Amritsar [(2000) 10 SCC
430]
Raj Deo Sharma (II) Vs. State of
Bihar [(1999) 7 SCC 604]
Zahira Habibullah Sheikh (5) & Anr.
Vs. State of Gujarat & Ors. [(2006) 3
SCC 374]
Iddar & Ors. Vs. Aabida & Anr.
[(2007) 11 SCC 211]
Himanshu Singh Sabharwal Vs. State
of Madhya Pradesh & Ors. [(2008) 3
SCC 602]
Natasha Singh Vs. Central Bureau of
Investigation (State) [(2013) 5 SCC
741]
Tomaso Bruno & Anr. Vs. State of
Uttar Pradesh [(2015) 7 SCC 178]
P. Sanjeeva Rao Vs. State of Andhra
Pradesh [(2012) 7 SCC 56]
Mina Lalita Baruwa Vs. State of
Orissa & Ors. [(2013) 16 SCC 173][13]
Salman Khan Vs. State of Rajasthan
[2015 (4) WLC (Raj.) 418]
Laxmi Mal Lodha & Anr. Vs. Suresh
Lodha (S.B. Cr. Revision Petition
No.4/2011, decided on 27th January
2011)
Nitesh Vs. State of Rajasthan (S.B.
Cr. Misc. Petition No.1775/2010,
decided on 3r d February 2012).
12. Per contra, Mr. S.K. Vyas, learned Addl.
Advocate General, assisted by Mr. V.S.
Rajpurohit, learned Public Prosecutor, while
repudiating all the arguments advanced on
behalf of petitioner, has urged that the so called
call-details of conversations between victim and
her parents and some of the prosecution
witnesses, who are accused before Jammu Court,
are not at all relevant for recalling the
prosecution witnesses for their crossexamination.
Learned Addl. Advocate General
would contend that the basic requirement for
summoning a witness or recalling a witness,
within the meaning of Section 311 Cr.P.C., is
conspicuously missing in the instant case and as
such no interference with the impugned order is
warranted. Learned Addl. Advocate General
further submits that trial in the matter is at the
fag end and the whole endeavour of the
petitioner to recall these witnesses for further[14]
examination/cross-examination is nothing but a
device to prolong trial, which is not intended by
the Legislature while enacting Section 311
Cr.P.C.
13. Defending the impugned order, learned
Addl. Advocate General has urged that the
learned trial Court has examined the application
of the petitioner under Section 311 Cr.P.C.
threadbare and by a well reasoned speaking
order declined the prayer, which cannot be made
subject matter of judicial review in exercise of
inherent jurisdiction of this Court. Learned Addl.
Advocate General also submits that legal
precedents, on which reliance is placed by the
petitioner, are clearly distinguishable in the
backdrop of peculiar facts and circumstances of
the instant case and according to general
principles governing the powers of a criminal
Court under Section 311 Cr.P.C., impugned order
is a just order, which warrants no interference.
Lastly, learned Addl. Advocate General submits
that the impugned order has not resulted in
abuse of the process of the Court or otherwise
occasioned failure of justice.
14. Mr. P.C. Solanki, learned counsel for the
complainant, has brazenly argued that the
application under Section 311 Cr.P.C., at the[15]
behest of petitioner, itself was not maintainable
and therefore no interference with the impugned
order is called for. While referring to subsection
(3) of Section 233 Cr.P.C., learned
counsel has argued that the Court, even at the
stage of defence, may, in its discretion, decline
to issue process to the witnesses if it is found
that accused has made attempt for the purpose
of vexation, or delay, or for defeating the ends
of justice, which pre-supposes that such grounds
are relevant even in the matter of consideration
of application under Section 311 Cr.P.C. for
recalling prosecution witnesses. He, therefore,
submits that if the learned trial Court has
thwarted the attempt of the accused to delay the
proceedings, same cannot be faulted so as to
make out a case for interference in exercise of
inherent jurisdiction. Mr. Solanki has also
romped in Section 33(5) of the POCSO Act,
which mandates that the Special Court shall
ensure that child is not called repeatedly to
testify in the Court and submits that the learned
trial Court in passing the impugned order has
exercised its discretion judiciously which is not
liable to be tinkered with sans abuse of the
process of any Court. Mr. Solanki would urge
that factum of registration of FIR at Jammu
against some of the prosecution witnesses was
within the knowledge of accused-petitioner at[16]
the time of arguments on charge and therefore
laying application after almost one and a half
year and that too after cross-examining all these
prosecution witnesses, to recall them is a blatant
attempt on the part of petitioner to prolong the
proceedings for defeating the ends of justice.
15. Mr. Solanki, while referring to the crossexamination
of victim and her mother, has
submitted that the defence counsel has
thoroughly cross-examined them, and even
confronted them with the alleged call details, is
a vital aspect which has been taken note of by
the learned trial Court while declining the prayer
of petitioner, is sufficient to non-suit the
petitioner in this petition. Elaborating his
submissions, Mr. Solanki has vehemently argued
that meticulous and pertinent cross-examination
of victim and her parents on call details, clearly
discernible from the statements of these
witnesses, is sufficient to prove that accused had
access to these call details at the time of crossexamination
of victim and other witnesses. Mr.
Solanki has put a serious question mark on the
reliability and admissibility of the call details by
urging that these call details are not worth
credence in absence of satisfaction of
requirements envisaged under Section 65-B of
the Evidence Act. He, therefore, submits that it[17]
is a question of great significance which goes to
the root of the matter.
16. Articulating his submission with emphasis,
learned counsel Mr. Solanki submits that there is
no proof to this effect, that these call details
were solicited by Jammu Police from service
providers of the mobile phones under Section 91
Cr.P.C., itself is sufficient for invoking Section
65-B of the Evidence Act. Lastly, learned
counsel for the complainant has argued that
even the call details are not part of the chargesheet,
and furthermore not showing the text of
SMS messages, is a relevant consideration which
has prevailed upon the learned trial Court for
exercising its discretion, which warrants no
interference in exercise of inherent powers. In
support of his various arguments, learned
counsel for the complainant has placed reliance
on following judgments:
Prem Raj Vs. State of Rajasthan &
Ors. [1998 Cr.L.R. (Raj.) 773]
Mahesh Chand Khandelwal Vs.
Surendra Kumar Dad [2010 (2) WLC
(Raj) 704]
Zahira Habibulla H. Sheikh & Anr. Vs.
State of Gujarat & Ors. [2004 SCC
(Cr.) 999]
AG Vs. Shiv Kumar Yadav & Anr.
[2015 AIR SCW 5302][18]
State of Haryana Vs. Ram Mehar &
Ors.[AIR 2016 SC 3942]
17. I have bestowed my consideration to the
arguments advanced at Bar and thoroughly
examined the impugned order in conjunction
with the entire material supplied by the learned
counsel for the petitioner.
GENERAL OBSERVATIONS PERTAINING TO
SECTION 311 CR.P.C.
18. Complete reading of Section 311 Cr.P.C. and
upon its meaningful construction, it is explicitly
clear that the Legislature in its wisdom, by
inserting this provision, has endowed
discretionary power on the Court to find out the
truth and render a just decision by exercising its
discretionary authority at any stage of the trial
to summon any person as witness or examine
any person in attendance though not summoned
as a witness or recall or reexamine any person
already examined, who are expected to be able
to throw light upon the matter in dispute.
Invocation of the discretionary power under
Section 311 Cr.P.C. is circumscribed by certain
riders and therefore a Court is expected to use
these powers judicially and not capriciously or[19]
arbitrarily. A relevant consideration for taking
aid of this Section is to discover relevant facts
or to obtain proper proof of such facts for a just
decision of the case. The Legislature, while
engrafting this provision, has equi-balanced the
position so that neither the prosecution nor the
defence can utilize it for filling up lacuna. The
Court, while exercising such discretionary power,
should not examine any person in attendance
though not summoned as witness or recall or
reexamine any person already examined as a
disguise for a retrial or to change the nature of
the case against either of the parties.
19. A criminal Court, while exercising power
under Section 311 Cr.P.C., is expected to
effectuate the right to speedy trial. Precisely,
the object of the provision is to do justice not
only from the point of view of the accused and
the prosecution but also from the point of view
of an orderly society.
At this stage, it would be just and
appropriate to make judicial scrutiny of the
argument of complainant that application under
Section 311 Cr.P.C. at the behest of accused is
not maintainable. The argument, on the face of
it, appears to be alluring but not of substance on
the touchstone of language employed therein.
While it is true that powers under Section 311
Cr.P.C. are discretionary in nature and sole
discretion rests on the Court but then any
request, may it be at the behest of an accused,
to summon any person as a witness or examine
any person in attendance though not summoned
as a witness, or recall or reexamine any person
already examined, cannot be denied to him if it
appears to the Court that his evidence is
essential to the just decision of the case.
Therefore, recording satisfaction, that evidence
of the witness is necessary, is sine qua non for
exercising power by a Court.
JUDICIAL SCRUTINY OF IMPUGNED ORDER
IN FACTUAL BACKDROP
20. In the instant case, accused-petitioner with
others is facing a criminal trial for various
offences of Indian Penal Code, viz., Section 342,
354A, 370(4), 376(2)(f), 376-D, 506, 509 and
120-B IPC as well as Sections 5(f)(6), 5(9)(6),
7/8 of the POCSO Act. The eight prosecution
witnesses including the child (victim), who were
cross-examined by the defence counsel, have
been named in the application submitted by the
accused-petitioner to recall them for further
cross-examination. If the grounds set out in the
application for recalling these prosecution
witnesses are examined on the touchstone of
Section 311 Cr.P.C., then it would ipso facto
reveal that the petitioner has shown reason for
its handicap/predicament in effectively crossexamining
these witnesses in want of requisite
material, which was subsequently solicited from
Jammu Court, wherein some of the prosecution
witnesses are criminally prosecuted for their
alleged delinquency having direct nexus with the
present case. As per version of the petitioner,
the call details, which are subsequently
obtained, do indicate some nexus and proximity
of the minor (victim) and her parents with these
prosecution witnesses, who are accused before
Jammu Court but during their cross-examination
these witnesses have given either negative
answer in this behalf or at times were evasive in
their reply. Citing presumption about culpability
of the accused for offences under the POCSO
Act, by virtue of Section 29 of the Act, accusedpetitioner
has made an attempt to justify his
prayer for recalling these witnesses for their
further cross-examination to throw light upon
the matter in dispute which may ensure just
decision of the case.
21. Although learned trial Court has made
sincere endeavour to examine the afflictions of
the petitioner and by a detailed order declined
his prayer, but in the backdrop of peculiar facts
and circumstances of the instant case, I feel[22]
persuaded to re-examine the same in the light of
statements of these prosecution witnesses more
particularly in light of their version during crossexamination
and the legal precedents on which
heavy reliance is placed by the petitioner.
22. A glance at the statements of minor (victim)
PW5 makes it explicitly clear that her
examination-in-chief started on 11.04.2014 and
completed on 21s t of April 2014. She was
subjected to cross-examination by a Senior
Counsel on 13th of May 2014 on behalf of
accused-petitioner and later on by the counsels
representing other accused persons. The crossexamination
was completed on 13th of June
2014, i.e. for almost one month she was
subjected to cross-examination on various dates.
During cross-examination, defence has made all
attempts to grill her for impeaching her
testimony. Undeniably, she has been confronted
for her alleged nexus and proximity with Pankaj
Dubey, who is an accused before Jammu Court,
as well as other prosecution witnesses, and
relevant questions were put to her regarding the
call details. The witness was also confronted
with reference to certain call details of
Deependra Singh with a suggestive question
showing his mobile number. Therefore, it is
rather difficult to fathom that the accused-[23]
petitioner was having no access to the call
details allegedly obtained by him after crossexamination
of the minor (victim). Putting
questions to the witness during crossexamination
with material particulars about
mobile numbers, date and duration of calls and
SMS, pre-supposes that this material was not
subsequently disclosed to the accused-petitioner
and this sort of inference also satisfies the test
of normal prudence about availability of this
material at the time of cross-examination of
minor (victim).
23. It is also noteworthy that during crossexamination
of the child (victim), there is no
suggestion by the defence counsel that she was
having her own mobile phone and the so called
phone calls were also made to the mobile
phone which her mother or father was carrying.
Under the POCSO Act, although there is a
presumption as to certain offences under Section
29 of the Act but being is a Special Act, Chapter
VIII also prescribes procedure and powers of the
Special Court and recording of evidence. Subsec.(5)
of Section 33 envisages a provision that
Special Court shall ensure that the child is not
called repeatedly to testify in the Court. There
are certain other safeguards also against child
inasmuch as a child cannot be subjected to
aggressive questioning or character
assassination and the Court is obliged to ensure
that identify of child is not disclosed at any time
during the course of investigation or trial. The
POCSO Act is inspired by Article 15 of the
Constitution of India and its enactment is in
furtherance of Article 39 which inter-alia
provides that State shall in particular direct its
policy towards securing that the tender age
children are not abused and their childhood and
youth are protected against exploitation and
they are given facilities to develop in a healthy
manner and conditions of freedom and dignity.
Thus, in totality, it is rather difficult to find any
fault with the impugned order in the factual
backdrop of the case to the extent it has
declined to recall the victim for further crossexamination.
24. Likewise, if the statements of two other
prosecution witnesses, the parents of child
(victim), PW 12 Sunita Singh and PW 21
Karamveer Singh, are thoroughly examined, then
too it is clearly discernible that both of them are
extensively cross-examined by the defence
counsels. Every attempt is made on behalf of
accused-petitioner and other accused persons to
confront them vis-Ã -vis alleged call details
during cross-examination, presumably obtained[25]
by the petitioner subsequently. The defence has
also put leading questions to these witnesses for
establishing their nexus and proximity with some
of the accused persons named before Jammu
Court for exposing alleged conspiracy between
them to prosecute petitioner and other accused
persons. The cross-examination of PW12
unequivocally reveals that witness was called
upon to disclose her nexus with the accused
persons named before Jammu Court precisely on
the strength of these call details and SMS.
Meticulous cross-examination of the witnesses,
by suggesting dates of each call and duration of
each and every call and the timings of SMS, presupposes
that accused persons were abreast
about all these materials at the time of crossexamination.
Similarly, PW21 Karamveer Singh
has also been effectively cross-examined by the
defence counsels for proving his proximity as
well as proximity of his wife with the accused
persons named before Jammu Court. Therefore,
recalling both these witnesses, i.e. PW12 and
PW21, for further cross-examination in such a
situation cannot be countenanced being an
ambitious plea at the behest of accusedpetitioner.
25. Now switching on to the other prosecution
witnesses, PW1 Pushplata and PW2 Nirpal Singh,[26]
suffice it to observe that PW1 is ASI and PW2 is
Duty Officer with the Delhi Police, who have
been thoroughly cross-examined by the defence
counsels and there appears no plausible reason
for recalling these witnesses for further crossexamination.
PW7 Kiran Jha Thakur, who is
managing affairs of some NGO, PW19 Rahul
Sachan, a businessman, and PW23 Mahendra
Chawla, who were followers of accusedpetitioner
at one point of time and have deposed
during their examination-in-chief to castigate
the accused-petitioner for his objectionable
activities, have also been subjected to
threadbare examination by the defence counsels
and as such it is rather difficult to comprehend
that recalling of these witnesses for further
cross-examination is necessary for just decision
of the case. Moreover, charge-sheeting some of
the prosecution witnesses subsequently before
Jammu Court by any stretch of imagination
cannot be construed a plausible reason to
discard/impeach their testimony as competent
witnesses in the instant case on the anvil of
particeps criminis within the four corners of
Evidence Act, 1872. Thus, recalling these
witnesses for further cross-examination is per se
a plea bereft of any merit inasmuch as the same
is falling short of requirements envisaged under
second part of Section 311 Cr.P.C. [27]
26. It goes without saying that credibility,
reliability or trustworthiness of a witness, if
allegedly put to jeopardy or under cloud on
disclosure of some material subsequently by
accused, cannot furnish a ground for recalling a
witness for further cross-examination within the
four corners of discretionary powers conferred
on a Court under Section 311 Cr.P.C. In the
process of adjudication, credibility or reliability
of a witness can very well be examined by the
Court so as to form an opinion that his testimony
is worth reliance to bring home guilt against
accused person. Even otherwise also, an
accused is well within his right to discredit
evidence of such witness by tendering defence
evidence of his choice as observed by the
learned trial Court. A criminal Court, while
making judicial scrutiny of testimony of any
witness, is expected to analyze its credibility for
forming an opinion that statements are sufficient
to bring home guilt against accused or lacking
requisite sting to conclude otherwise.
CONSIDERATION OF LEGAL PRECEDENTS TO
THRASHOUT AMBIT AND SCOPE OF SECTION
311 CR.P.C.
27. In Mannan Shaikh & Ors. (supra), Supreme
Court has considered power to recall a witness[28]
by resorting to Section 311, 243(2) and 246(5)
Cr.P.C. Upon threadbare examination of these
provisions, the Court has opined that
permissibility and manner of exercise of such
power depends on facts of an individual case.
The Court further observed that a criminal Court,
while resorting to Section 311 Cr.P.C. is
expected to form an opinion that such recalling
is essential to just decision of case. While
construing such power to be of wide amplitude,
the Court has also observed that power is to be
exercised with circumspection and only with
object of arriving at just decision of the case.
The judgment, as such, is dilating on the powers
of criminal Court and parameters for exercising
such powers, and therefore, ratio decidendi of
this judgment deserves adherence without any
demur but for in the backdrop of facts of an
individual case.
28. While deciding case of Jamatraj Kewalji
Govani (supra), Supreme Court had the occasion
to examine the power to recall a witness under
Section 540 of the Code of Criminal Procedure,
1898, which is pari materia to Section 311
Cr.P.C. The Court held:
“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[29]
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 he case
demands it. In other words, where the
court exercises the powder under the
second part, the inquiry cannot be
whether the accused has brought
anything suddenly or unexpectedly but
whether 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
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.”
29. In Mohanlal Shamji Soni (supra), Supreme
Court has reiterated the same principle after
analyzing Section 540 of the Code of Criminal
Procedure, 1898 as well as Section 311 Cr.P.C.
The Court held:
“The next important question is
whether Section 540 gives the court
carte-blanche drawing no underlying
principle in the exercise of the
extraordinary power and whether the
said Section is unguided, uncontrolled
and uncanalised. Though
Section 540 (Section 311 of the new
Code) is, in the widest possible terms
and calls for no limitation, either with
regard to the stage at which the powers
of the court should be exercised, or
with regard to the manner in which they
should be exercised, that power is
circumscribed by the principle that[30]
underlines Section 540, namely,
evidence to be obtained should appear
to the court essential to a just decision
of the case by getting at the truth by all
lawful means. Therefore, it should be
borne in mind that the aid of the
section should be invoked only with the
object of discovering relevant facts or
obtaining proper proof of such facts for
a just decision of the case and it must
be used judicially and not capriciously
or arbitrarily because any improper or
capricious exercise of the power may
lead to undesirable results. Further it is
incumbent that due care should be
taken by the court while exercising 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.”
“The principle of law that emerges
from the views expressed by this Court
in the above decisions is 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 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 the requirements of
justice command the examination of
any person which would depend on the
facts and circumstances of each case.”[31]
30. In Rajendra Prasad (supra), Supreme Court,
while examining power under Section 311
Cr.P.C. to recall or re-summon a witness,
reiterated the principle that power cannot be
exercised to fill up lacuna in prosecution case.
However, while construing the meaning of the
term “lacuna in prosecution case”, the Court
observed that oversight or mistakes during
conducting of a case cannot be understood as
lacuna and so can be corrected. The Court held:
“It is a common experience in
criminal courts that defence counsel
would raise objections whenever courts
exercise powers under Section 311 of
the Code or under Section 165 of the
Evidence Act, 1872 by saying that the
Court could not “fill the lacuna in the
prosecution case”. A lacuna in the
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. The adage “to err is human”
is the recognition of the possibility of
making mistakes to which humans are
prone. A corollary of any such latches
or mistakes during the conducting of a
case cannot be understood as a lacuna
which a court cannot fill up.
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 over sight
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 parties performed better.”
Taking into account the fact situation in the
instant case, while accepting the legal
proposition adumbrated in the verdict, in the
considered opinion of this Court, in the backdrop
of facts and circumstances of the instant case,
the judgment cannot render any assistance to
the petitioner.
31. In Hoffman Andreas (supra), Supreme Court
exercised power under Section 311 Cr.P.C. to
recall a witness for further cross-examination
precisely on the ground of pendente lite death of
defence counsel and as such in the peculiar facts
and circumstances, the Court granted indulgence
to the accused persons for doing substantial
justice in the matter and therefore the ratio
decidendi of that judgment cannot render any
assistance to the cause of the petitioner.
In Raj Deo Sharma (II) (supra),
Supreme Court revisited power under Section
311 Cr.P.C. and observed that even after closure
of the prosecution evidence it is still open to the
prosecution to invoke powers of the Court under
Section 311 Cr.P.C. if evidence of any witness
appears to the Court essential to the just
decision of the case. There cannot be two
opinions about this general proposition but then
invocation of power depends on facts of an
individual case with emphasis on essentiality to
recall a witness which may enable the Court to
find out truth and render a just decision.
32. Zahira Habibullah Sheikh & Anr. (supra),
popularly know as Best Bakery Case, Supreme
Court examined threadbare the nature, scope
and object of Section 311 Cr.P.C. on the anvil of
Sections 60, 64 & 69 of the Evidence Act. The
Court observed that it is the cardinal rule of law
that best evidence available should be brought
before the Court. While discussing Section 311
Cr.P.C., the Court has observed that its first part
gives purely discretionary authority to a criminal
Court whereas second part is mandatory and
compels the Court to take any of the
aforementioned steps if the new evidence
appears to it essential to the just decision of the
case. Therefore, while dilating on second part[34]
of Section 311 Cr.P.C., emphasis is supplied on
essentiality of new evidence which may enable a
Court to arrive at a just decision. Thus, the
Court has although treated second part
mandatory but acknowledged discretion of the
Court for recording its satisfaction that evidence
is essential to the just decision of the case. The
Court held:
26. In this context, reference may be
made to Section 311 of the Criminal
Procedure Code which reads as follows:
“311. Power to summon material
witness, or examine person present.—
Any court may, at any stage of any
inquiry, trial or other 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 already examined; and the court
shall summon and examine or recall and
re-examine any such person if his
evidence appears to it to be essential to
the just decision of the case.”
The section is manifestly in two parts.
Whereas the word used in the first part is
“may”, the second part uses “shall”. In
consequence, 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 anyone as a witness, or (b) to
examine any person present in the court,
or (c) to recall and re-examine any person
whose evidence has already been
recorded. On the other hand, the second
part is mandatory and compels the court
to take any of the aforementioned steps if
the new evidence appears to it essential
to the just decision of the case. This is a
supplementary provision enabling, and in
certain circumstances imposing on the
court the duty of examining a material
witness who would not be otherwise
brought before it. It is couched in the
widest possible terms and calls for no
limitation, either with regard to the stage
at which the powers of the court should
be exercised, or with regard to the
manner in which it should be exercised. It
is not only the prerogative but also the
plain duty of a court to examine such of
those witnesses as it considers absolutely
necessary for doing justice between the
State and the subject. There is a duty
cast upon the court to arrive at the truth
by all lawful means and one of such
means is the examination of witnesses of
its own accord when for certain obvious
reasons either party is not prepared to
call witnesses who are known to be in a
position to speak important relevant facts.
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 of 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 the 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
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.
28. As indicated above, the section is
wholly discretionary. The second part of it
imposes upon the Magistrate an
obligation: it is, that the court shall
summon and examine all persons whose
evidence appears to be essential to the
just decision of the case. It is a cardinal
rule in the law of evidence that the best
available evidence should be brought
before the court. Sections 60, 64 and 91
of the Evidence Act, 1872 (in short “the
Evidence Act”) are based on this rule. The
court is not empowered under the
provisions of the Code to compel either
the prosecution or the defence to examine
any particular witness or witnesses on
their side. This must be left to the
parties. But in weighing the evidence, the
court can take note of the fact that the
best available evidence has not been
given, and can draw an adverse inference.
The court will often have to depend on
intercepted allegations made by the
parties, or on inconclusive inference from
facts elicited in the evidence. In such
cases, the court has to act under the
second part of the section. Sometimes the
examination of witnesses as directed by
the court may result in what is thought to
be “filling of loopholes”. That is purely a
subsidiary factor and cannot be taken into
account. Whether the new evidence is
essential or not must of course depend on
the facts of each case, and has to be
determined by the Presiding Judge.
29. The object of Section 311 is to
bring on record evidence not only from
the point of view of the accused and the
prosecution but also from the point of
view of the orderly society. If a witness
called by the 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 provisions of
Section 311, but under the Evidence Act
which gives a party the right to crossexamine
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 Jamatraj Kewalji Govani v.
State of Maharashtra.
33. Supreme Court, in Iddar & Ors. (supra), has
reiterated the principles laid down in Zahira
Habibullah Sheikh & Anr. (supra). Likewise, in
Himanshu Singh Sabharwal (supra) also same
principle is reiterated.
In Natasha Singh (supra), Supreme
Court, while examining powers of a criminal
Court under Section 311 Cr.P.C. to examine a
person as witness, laid down parameters for[38]
exercising discretionary powers. Indisputably, it
was not a case of recalling a witness for further
cross-examination and therefore while
considering prayer in the case on the anvil of
right of an accused to fair trial, the Court held:
“Section 311 CrPC empowers the
court to summon a material witness, or
to examine a person present at “any
stage” of “any enquiry”, or “trial”, or
“any other proceedings” under CrPC, or
to summon any person as a witness, or
to recall and re-examine any person
who has already been examined if his
evidence appears to it, to be essential
to the arrival of a just decision of the
case. Undoubtedly, CrPC has conferred
a very wide discretionary power upon
the court in this respect, but such a
discretion is to be exercised judiciously
and not arbitrarily. The power of the
court in this context is very wide, and
in exercise of the same, it may summon
any person as a witness at any stage of
the trial, or other proceedings. The
court is competent to exercise such
power even suo motu if no such
application has been filed by either of
the parties. However, the court must
satisfy itself, that it was in fact
essential to examine such a witness, or
to recall him for further examination in
order to arrive at a just decision of the
case.”
“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[39]
judiciously and not capriciously or
arbitrarily, as any improper or
capricious exercise of such power may
lead to undesirable results. An
application under Section 311 CrPC
must not be allowed only to fill up a
lacuna in the case of the prosecution,
or of 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 opposite party.
Further, the additional evidence must
not be received as a disguise for retrial,
or to change the nature of the case
against either of the parties. Such a
power must be exercised, provided that
the evidence that is likely to be
tendered by a witness, is germane to
the issue involved. An opportunity of
rebuttal however, must be given to the
other party. The power conferred under
Section 311 CrPC 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 great caution and
circumspection. The very use of words
such as “any court”, “at any stage”, or
“or any enquiry, trial or other
proceedings”, “any person” and “any
such person” clearly spells out that the
provisions of this section have been
expressed in the widest possible terms,
and do not limit the discretion of the
court in any way. There is thus no
escape if the fresh evidence to be
obtained is essential to the just
decision of the case. The determinative
factor should therefore be, whether the
summoning/recalling of the said witness
is in fact, essential to the just decision
of the case.[40]
Therefore, in the backdrop of facts and
circumstances of the case, recalling eight
prosecution witnesses, for further crossexamination,
cannot be treated at par seeking
permission to examine three witnesses by the
accused. In the case in hand, all the eight
prosecution witnesses are thoroughly examined
by defence at the earlier point of time and
taking note of this fact the learned trial Court
has declined prayer of the accused for recalling
these witnesses, therefore, cannot be faulted
and as such this judgment too is of no avail and
consequence to the petitioner.
34. The judgment in Tomaso Bruno & Anr.
(supra), on which the petitioner has placed
reliance, is essentially pertaining to Section 65A,
65B and 65 of the Evidence Act, 1872. The
Court, while considering the provisions,
observed that prosecution cannot withhold
evidence, which could have clinched the issue.
Taking into account peculiar facts and
circumstances of the case, wherein accused
appellants were foreigners, the Court has
deprecated the practice of prosecution in
withholding best evidence. With utmost
respect, in the considered opinion of this Court,
at no point of time accused-petitioner has ever[41]
raised his grievance against the investigating
agency and even while participating in the trial
also cross-examined as many as 42 prosecution
witnesses, cannot be allowed to take such a plea
at the fag end of the trial so as to take any
assistance from the aforementioned legal
precedent. Therefore, this ambitious plea of the
petitioner is wholly untenable and this judgment
is obviously of no assistance to the cause of the
petitioner.
35. In P. Sanjeeva Rao (supra), Supreme Court
has again reiterated the same principle that
exercise of power of Court to recall any witness
for cross-examination is permissible only when it
is essential for just decision of the case.
In Mina Lalita Baruwa (supra) Supreme
Court, after reading Section 301 and 311 Cr.P.C.
together, reiterated the same principle that
invocation of Section 311 Cr.P.C. pre-supposes
recalling of a witness to arrive at a just decision.
Same legal position is adumbrated by the
Supreme Court in Manan Sheikh (supra).
In Salman Khan (supra), learned Single
Judge of this Court, after considering a relevant
fact that prosecution was allowed to produce
documents after a lapse of more than nine years
that too when the judgment was reserved for
pronouncement, felt persuaded to accede to the[42]
prayer of accused for recalling prosecution
witnesses. Therefore, this case too is factually
distinguishable.
Judgment of learned Single Judge in
Laxmi Mal Lodha & Anr. (supra) was under the
Negotiable Instruments Act, and in the backdrop
of peculiar facts and circumstances that
judgment too is clearly distinguishable.
Similarly, the ratio decidendi of Nitesh
(supra) is clearly distinguishable, more
particularly, in the wake of the fact that the
prosecution witnesses were earlier thoroughly
cross-examined yet an endeavour is made on
behalf of the accused-petitioner for recalling
them.
36. The judgment, on which the learned counsel
for the complainant has placed reliance, i.e.
Prem Raj (supra), is essentially highlighting
scope of Section 311 Cr.P.C. A learned Single
Judge of this Court has observed that power
under this Section is conferred on the Court and
not on parties. However, the Court has also
acknowledged the power of the Court as
unfettered to examine and re-examine any
witness under the aforesaid provision at any
time in any inquiry or trial. Therefore,
essentially, the Court has dilated on this aspect
of the matter that powers under Section 311[43]
Cr.P.C. are circumscribed by the Legislature and
therefore are to be exercised sparingly if it is
necessary to do so for just decision of the case.
In Mahesh Chand Khandelwal (supra), a
Single Judge of this Court has essentially
examined the relative scope of Section 242(3)
and 311 Cr.P.C. and in that background observed
that Section 311 cannot be invoked by accused
for recalling witness for cross-examination. It is
needless to observe here that in this case also
the Court has observed that powers of a criminal
Court, to examine and re-examine any witness
under Section 311 Cr.P.C., are unfettered.
37. In Zahira Habibulla H. Sheikh & Anr.
(supra), Supreme Court has made endeavour to
examine nature, scope and object of Section 311
Cr.P.C. read with Section 165 of the Evidence
Act 1872 and while relying on its earlier decision
in Mohanlal Shamji Soni (supra), held:
“44. The power of the court under
Section 165 of the Evidence Act is in a
way complementary to its power under
Section 311 of the Code. The section
consists of two parts i.e.: (i) giving a
discretion to the court to examine the
witness at any stage, and ( ii) the
mandatory portion which compels the
court to examine a witness if his evidence
appears to be essential to the just
decision of the court. Though the
discretion given to the court is very wide,
the very width requires a corresponding
caution. In Mohanlal v. Union of India this[44]
Court has observed, while considering the
scope and ambit of Section 311, that the
very usage of the words such as, “any
court”, “at any stage”, or “any enquiry or
trial or other proceedings”, “any person”
and “any such person” clearly spells out
that the section has expressed in the
widest-possible terms and do not limit the
discretion of the court in any way.
However, as noted above, the very width
requires a corresponding caution that the
discretionary powers should be invoked as
the exigencies of justice require and
exercised judicially with circumspection
and consistently with the provisions of the
Code. The second part of the section does
not allow any discretion but obligates and
binds the court to take necessary steps if
the fresh evidence to be obtained is
essential to the just decision of the case,
“essential” to an active and alert mind
and not to one which is bent to abandon
or abdicate. Object of the section is to
enable the court to arrive at the truth
irrespective of the fact that the
prosecution or the defence has failed to
produce some evidence which is necessary
for a just and proper disposal of the case.
The power is exercised and the evidence
is examined neither to help the
prosecution nor the defence, if the court
feels that there is necessity to act in
terms of Section 311 but only to subserve
the cause of justice and public interest. It
is done with an object of getting the
evidence in aid of a just decision and to
uphold the truth.
45. It is not that in every case where
the witness who had given evidence
before court wants to change his mind
and is prepared to speak differently, that
the court concerned should readily accede
to such request by lending its assistance.
If the witness who deposed one way
earlier comes before the appellate court
with a prayer that he is prepared to give
evidence which is materially different
from what he has given earlier at the trial
with the reasons for the earlier lapse, the
court can consider the genuineness of the
prayer in the context as to whether the
party concerned had a fair opportunity to
speak the truth earlier and in an
appropriate case, accept it. It is not that
the power is to be exercised in a routine
manner, but being an exception to the
ordinary rule of disposal of appeal on the
basis of records received in exceptional
cases or extraordinary situation the court
can neither feel powerless nor abdicate its
duty to arrive at the truth and satisfy the
ends of justice. The court can certainly be
guided by the metaphor, separate the
grain from the chaff, and in a case which
has telltale imprint of reasonableness and
genuineness in the prayer, the same has
to be accepted, at least to consider the
worth, credibility and the acceptability of
the same on merits of the material sought
to be brought in.
46. Ultimately, as noted above, ad
nauseam the duty of the court is to arrive
at the truth and subserve the ends of
justice. Section 311 of the Code does not
confer on any party any right to examine,
cross-examine and re-examine any
witness. This is a power given to the court
not to be merely exercised at the bidding
of any one party/person but the powers
conferred and discretion vested are to
prevent any irretrievable or immeasurable
damage to the cause of society, public
interest and miscarriage of justice.
Recourse may be had by courts to power
under this section only for the purpose of
discovering relevant facts or obtaining
proper proof of such facts as are
necessary to arrive at a just decision in
the case.”
38. In Shiv Kumar Yadav & Anr. (supra),
Supreme Court declined to recall witnesses for
cross-examination on the ground that they were
not properly cross-examined by the defence
counsel. The Court observed that mere
observation that recall was necessary (for
ensuring fair trial) is not enough in absence of
any tangible reason at the cost of hardships to
the witnesses and victim. The Court held:
“The above observations cannot be
read as laying down any inflexible rule
to routinely permit a recall on the
ground that cross-examination was not
proper for reasons attributable to a
counsel. While advancement of justice
remains the prime object of law, it
cannot be understood that recall can be
allowed for the asking or reasons
related to mere convenience. It has
normally to be presumed that the
counsel conducting a case is competent
particularly when a counsel is appointed
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. 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 victims, especially so, of
heinous crimes, if they are required to
repeatedly appear in court to face
cross-examination.”
“At this stage, to judge as to
whether certain questions should have
been put to the witnesses in cross
examination or should not have been
put to them, would in my view result in
pre-judging as to what are the material
portions of the evidence and would also
amount to re-appraising the entire
cross examination conducted by the
earlier counsel to conclude whether he
had done a competent job or not. This
certainly is not within the scope and
power of the court Under Section 311
Cr.P.C. I am supported in my view by
the observations of Hon'ble Delhi High
Court in its order dated 20/02/2008 in
case titled as Raminder Singh v. State,
Criminal MC 8479/2006, where it has
been held as under:
In the first place, it requires to be
noticed that scope of Section 311
Cr.P.C. does not permit a court to go
into the aspect whether material
portions of the evidence on record
should have been put to the witness in
cross-examination to elicit their
contradictions. If the court is required
to perform such an exercise every time
an application is filed Under
Section 311 then not only would it be
pre-judging what according to it are
'material portions' of the evidence but it
would end up reappraising the entire
cross-examination conducted by a
counsel to find out if the counsel had
done a competent job or not. This
certainly is not within the scope of the
power of the trial court Under
Section 311 Cr.P.C. No judgment has
been pointed out by the learned
Counsel for the Petitioner in support of
such a contention. Even on a practical
level it would well nigh be impossible to
ensure expeditious completion of trials
if trial courts were expected to perform
such an exercise at the conclusion of
the examination of prosecution
witnesses every time.”
39. Ram Mehar & Ors. (supra), a latest verdict of
Supreme Court, has dilated on power of a
criminal Court to recall a witness for further
cross-examination under Section 311 Cr.P.C.
The Court, while considering power under
Section 311, Cr.P.C. on the anvil of violation of
Article 21 of the Constitution of India, observed
that change of counsel by defence and failure to
put certain questions to the witnesses is no
ground to recall witness. Highlighting right of
an accused to fair trial, the Court observed that
concept of fair trial cannot be limitlessly
stretched. The Court held:
“34. 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[49]
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 witnesses. That apart, it has been
urged that certain suggestions could
not be given. The marrow of the
grounds relates to the illness of the
counsel. It needs to be stated that the
learned trial Judge who had the
occasion to observe the conduct of the
witnesses and the proceedings in the
trial, has clearly held that recalling of
the witnesses were not necessary for
just decision of the case. The High
Court, as we notice, has referred to
certain authorities and distinguished
the decision in Shiv Kumar Yadav (AIR
2015 SC 3501) (supra) and Fatehsinh
Mohansinh Chauhan (2006 AIR SCW
4840) (supra). The High Court has
opined that the court has to be
magnanimous in permitting mistakes to
be rectified, more so, when the
prosecution was permitted to lead
additional evidences by invoking the
provisions Under Section 311 Cr.P.C.
The High Court has also noticed that
the accused persons are in prison and,
therefore, it should be justified to allow
the recall of witnesses.
35. The heart of the matter is
whether the reasons ascribed by the
High Court are germane for exercise of
power Under Section 311 Cr.P.C. The
criminal trial is required to proceed in
accordance with Section 309 of the
Cr.P.C. This Court in Vinod Kumar v.
State of Punjab, while dealing with
delay in examination and crossexamination
was compelled to observe
thus:[50]
“If one is asked a question, what
afflicts the legally requisite criminal
trial in its conceptual eventuality in this
country the two reasons that may earn
the status of phenomenal signification
are, first, procrastination of trial due to
non-availability of witnesses when the
trial is in progress and second,
unwarranted adjournments sought by
the counsel conducting the trial and the
unfathomable reasons for acceptation of
such prayers for adjournments by the
trial courts, despite a statutory
command under Section 309 of the
Code of Criminal Procedure, 1973
(Cr.P.C.) and series of pronouncements
by this Court. What was a malady at
one time, with the efflux of time, has
metamorphosed into malignancy. What
was a mere disturbance once has
become a disorder, a diseased one, at
present.
And again:
“The duty of the court is to see
that not only the interest of the accused
as per law is protected but also the
societal and collective interest is
safeguarded. It is distressing to note
that despite series of judgments of this
Court, the habit of granting
adjournment, really an ailment,
continues. How long shall we say,
"Awake! Arise!". There is a constant
discomfort. ...”
37. There is a definite purpose in
referring to the aforesaid authorities.
We are absolutely conscious about the
factual matrix in the said cases. The
observations were made in the context
where examination-in-chief was[51]
deferred for quite a long time and the
procrastination ruled as the Monarch.
Our reference to the said authorities
should not be construed to mean that
Section 311 Cr.P.C. should not be
allowed to have its full play. But, a
prominent one, the courts cannot ignore
the factual score. Recalling of witnesses
as envisaged under the said statutory
provision on the grounds that accused
persons are in custody, the prosecution
was allowed to recall some of its
witnesses earlier, the counsel was ill
and magnanimity commands fairness
should be shown, we are inclined to
think, are not acceptable in the
obtaining factual matrix. The decisions
which have used the words that the
court should be magnanimous, needless
to give special emphasis, did not mean
to convey individual generosity or
magnanimity which is founded on any
kind of fanciful notion. It has to be
applied on the basis of judicially
established and accepted principles.
The approach may be liberal but that
does not necessarily mean "the liberal
approach" shall be the Rule and all
other parameters shall become
exceptions. Recall of some witnesses
by the prosecution at one point of time,
can never be ground to entertain a
petition by the defence though no
acceptable ground is made out. It is
not an arithmetical distribution. This
kind of reasoning can be dangerous. In
the case at hand, the prosecution had
examined all the witnesses. The
statements of all the accused persons,
that is 148 in number, had been
recorded under Section 313 Cr.P.C. The
defence had examined 15 witnesses.
The foundation for recall, as is evincible
from the applications filed, does not
even remotely make out a case that
such recalling is necessary for just
decision of the case or to arrive at the
truth. The singular ground which
prominently comes to surface is that
the earlier counsel who was engaged by
the defence had not put some questions
and failed to put some questions and
give certain suggestions. It has come
on record that number of lawyers were
engaged by the defence. The accused
persons had engaged counsel of their
choice. In such a situation recalling of
witnesses indubitably cannot form the
foundation. If it is accepted as a
ground, there would be possibility of a
retrial. There may be an occasion when
such a ground may weigh with the
court, but definitely the instant case
does not arouse the judicial conscience
within the established norms of Section
311 Cr.P.C. for exercise of such
jurisdiction. It is noticeable that the
High Court has been persuaded by the
submission that recalling of witnesses
and their cross-examination would not
take much time and that apart, the
cross-examination could be restricted to
certain aspects. In this regard, we are
obliged to observe that the High Court
has failed to appreciate that the
witnesses have been sought to be
recalled for further cross-examination
to elicit certain facts for establishing
certain discrepancies; and also to be
given certain suggestions. We are
disposed to think that this kind of plea
in a case of this nature and at this
stage could not have been allowed to be
entertained.[53]
38. At this juncture, we think it apt
to state that the exercise of power
under Section 311 Cr.P.C. can be
sought to be invoked either by the
prosecution or by the accused persons
or by the Court itself. The High Court
has been moved by the ground that the
accused persons are in the custody and
the concept of speedy trial is not
nullified and no prejudice is caused,
and, therefore, the principle of
magnanimity should apply. Suffice it to
say, a criminal trial does not singularly
centres around the accused. In it there
is involvement of the prosecution, the
victim and the victim represents the
collective. The cry of the collective may
not be uttered in decibels which is
physically audible in the court
premises, but the Court has to remain
sensitive to such silent cries and the
agonies, for the society seeks justice.
Therefore, a balance has to be struck.
We have already explained the use of
the words "magnanimous approach" and
how it should be understood. Regard
being had to the concept of balance,
and weighing the factual score on the
scale of balance, we are of the
convinced opinion that the High Court
has fallen into absolute error in axing
the order passed by the learned trial
Judge. If we allow ourselves to say,
when the concept of fair trial is
limitlessly stretched, having no
boundaries, the orders like the present
one may fall in the arena of sanctuary
of errors. Hence, we reiterate the
necessity of doctrine of balance.”
CONCLUSION[54]
40. A cumulative reading of Section 311
Cr.P.C. and upon construing true nature of
power with which a criminal Court is endowed
therein, as adumbrated in all the judicial
precedents, it has come to the fore that Section
is bifurcated into two parts. In the first part,
Legislature has used the word “may” so as to
confer discretion on the Court for resorting to
such power whereas in juxtaposition to it, the
second part uses “shall”, indicating its
mandatory nature to confer power on a criminal
Court enabling it at any stage of the trial to take
any of the aforementioned steps with certain
riders. Thus, the power under second part of
Section 311 Cr.P.C. is of wide amplitude and
dimension but with caution/restriction to
exercise the same when new evidence is
essential to the just decision of the case. This
being the position, power under second part of
Section 311 Cr.P.C. cannot be exercised in a
routine manner by a criminal Court for ordering
retrial or filling lacuna and gaps in the evidence
tendered either by the prosecution or by
accused. If these parameters and yardsticks are
objectively applied in the facts and
circumstances of the present case, then without
any reservation or demur, in my opinion, learned
trial Court has not at all scuttled the path to
secure ends of justice. My this view also find[55]
support from a decision of Supreme Court in
case of Rajaram Prasad Yadav Vs. State of Bihar
(2013) 14 SCC 461. Speaking for the Bench,
F.M.I. Kalifulla, J. explained the proposition as
follows:
“It is, therefore, imperative that
the invocation of Section 311 Cr.P.C.
and its application in a particular case
can be ordered by the Court, only by
bearing in mind the object and purport
of the said provision, namely, for
achieving a just decision of the case as
noted by us earlier. The power vested
under the said provision is made
available to any Court at any stage in
any inquiry or trial or other proceeding
initiated under the Code for the purpose
of summoning any person as a witness
or for examining any person in
attendance, even though not summoned
as witness or to recall or re-examine
any person already examined. Insofar
as recalling and re-examination of any
person already examined, the Court
must necessarily consider and ensure
that such recall and re-examination of
any person, appears in the view of the
Court to be essential for the just
decision of the case.”
41. As such, upon analysis of ambit and scope of
Section 311 Cr.P.C., adumbrated by the
authoritative legal precedents, in the backdrop
of peculiar facts and circumstances of the instant
case, I am afraid, the impugned order cannot be
categorized as infirm or perverse. The learned
trial Court has taken pain to examine all the
pros and cons while declining prayer of the
accused-petitioner in the light of trite law on the
subject and criminal delinquency of the
petitioner. Therefore, viewed from any angle,
learned trial Court has not committed any
manifest error of law in passing the impugned
order warranting interference in exercise of
inherent jurisdiction of this Court. In totality,
indisputably, instant one is not a case wherein
learned trial Court has abused the process of
any Court or otherwise committed any patent
error which has resulted in miscarriage of
justice.
The upshot of above discussion is that the
instant petition fails and the same is hereby
dismissed.
(P.K. LOHRA) J.
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