Friday, 10 September 2021

Whether court can permit a party to call any witness as per S 311 of CRPC when case is fixed for Judgment?

 In view of the provisions of Section 311 and the

above-referred authorities, it is abundantly clear that

Section 311 empowers the Court to issue summons to

any witness whose evidence is found essential for the

just decision of the case, even if such witness is not

cited by the prosecution originally and this power can

be exercised at any state of the enquiry or trial till

before the judgment is actually pronounced. ‘’

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 1706 OF 2019

Balu  Bajirao Shinde Vs   The State of Maharashtra,


CORAM : SURENDRA P. TAVADE, J.

DATE : 23.08.2021


Rule. Rule made returnable forthwith with consent of the

learned counsel for the parties.

2. The petitioner is challenging the order passed by the

learned Judicial Magistrate, First Class, Patoda, District Beed in

Summary Criminal Case No. 477 of 2010 dated 26th August,


2019, whereby respondent No.2 is allowed to re-examine

himself to prove the document mentioned in the application.

3. It is contended that the trial Court has not considered the

provision of Section 311 of the Code of Criminal Procedure and

wrongly allowed the application. It is contended that respondent

No.2 has fled criminal complaint under Section 138 of the

Negotiable Instruments Act against the petitioner on

16.10.2010. Thereafter, respondent No.2 fled afdavit of

evidence on 24.02.2012. He was cross-examined by the

petitioner. Thereafter, he adduced evidence of his witnesses on

20th April 2013. It is also contended that respondent No.2 has

fled pursis for closing of evidence. Thereafter, he submitted

applications for examination of Bank ofcers. The said

applications came to be allowed. Thereafter, respondent No.2

has also called Manager of State Bank of India, Patoda Branch

to prove the documents relating to the cheque in question. The

said application was allowed. It is contended that on 26th June,

2019 respondent No.2 fled an application under Section 294 of

the Code of Criminal Procedure calling upon the petitioner to

admit or deny the documents referred therein. The said

application came to be rejected by the trial Court. Thereafter,

petitioner fled an application below Exh. 86 wherein he prayed

for his re-examination to prove the original cheque, Bank

receipts, Bank memorandum, notice issued by him and postal

acknowledgment of petitioner. The said application was

objected by the petitioner but it was allowed. The said order is

under challenge.

4. It is contended that respondent No.2 is trying to fll in

lacuna, he was given sufcient opportunity to adduce his

evidence but still no care was taken by respondent No.2 for

proving all his documents. It is contended that even after the

closing of evidence the trial Court had granted an opportunity

to respondent No.2 to examine the witnesses but still

respondent No.2 has not taken care and thereafter by fling

application below Exh. 86 prayed for his re-examination which is

not permissible. It is contended that the order passed by the

trial Court is against law and it may be quashed and set-aside.

5. On the other hand, the learned counsel for respondent

No.2 submits that the Court has ample powers under Section

311 of the Code of Criminal Procedure to recall the witness

already examining in the case for proving the document. It is

contended that the provision of Section 311 of the Code of

Criminal Procedure can be invoked at any stage of the trial

including at the stage of judgment. He also submits that some

documents were remained to be proved on behalf of respondent

No.2, therefore, respondent No.2 submitted an application for

his re-examination which was granted as per the provision of

Section 311 of the Code of Criminal Procedure. The trial Court

has rightly used its discretion and passed the impugned order

which is just and reasonable and there is no need to interfere

with the order of trial Court.

6. Heard the learned counsel for the petitioner and learned

counsel for respondent No.2.

7. Perused the impugned order. To appreciate the contention

of the petitioner, it is required to be seen the chequered history

of the litigation. Admittedly, the complaint came to be fled on

16th October, 2010. Respondent No.2 fled his afdavit of

evidence on 21st February, 2012. His cross-examination was

completed on 16th September, 2012. Thereafter, petitioner has

fled afdavit of his witnesses but he remain absent, therefore,

the afdavit was treated as canceled. Thereafter, on 12th

August, 2013 respondent No.2 fled evidence close pursis which

was taken on record.

8. It appears from the record that thereafter respondent

fled an application on 31.10.2018 for examination of the

officers from State Bank of India. The application for

examination of Bank Officer from the State Bank of India was

allowed and he was examined.

9. Then on 25th March, 2019 respondent No.2 fled an

application for calling Branch Manager of Union Bank of India,

Branch at Beed. The said witness was examined. Thereafter,

on 19.08.2019 respondent No.2 fled an application for his reexamination

to prove the documents. The said application was

allowed and the said order is under the challenge. The events

mentioned above are taken into account, it can be said that the

proceeding is going on before the trial Court since 2010.

Respondent No.2 had adduced his evidence and the evidence

of Bank officers, even after closing the evidence. In fact, the

documents namely cheque, notice, postal acknowledgment

ought to have been produced and exhibited during the

examination of the respondent himself. But it appears that the

said documents were not even produced on record along with

the evidence affidavit of respondent No.2. Thereafter,

respondent No.2 was given opportunity to examine the Bank

ofcers to prove documents namely cheque return memo and

other documents. Accordingly both the ofcers of the Banks

were examined. Thereafter, respondent No.2 has tried to reexamine

himself to prove the documents. In fact, the cheque

return memo could have been exhibited during the examination

of the Bank officers. If those documents were not exhibited

then why officers of both the Banks were examined by

respondent No.2. The said fact is not revealed from the record.

10. Now coming to the provision of Section 311 of the Code of

Criminal Procedure which runs as under :-

‘’ Section 311. Power to summon material witness,

or examine person present-

Any Court may, at any stage of any inquiry, trial

or other proceeding under 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.’’

11. There is no dual opinion about the powers of trial Court to

examine or re-examine the witnesses at any stage of the trial

with the aid of Section 311 of the Code of Criminal Procedure. At

the same time, the trial Court is required to see whether there is

genuine error/ misstate/ fault on behalf of the party applying

under Section 311 of the Code of Criminal Procedure. The

provision of Section 311 of the Code of Criminal Procedure

cannot be invoked to fill up the lacuna in the case. The learned

counsel for the petitioner relied on the ratio laid down in the

case of Gurmeet Surjitsing Asla Vs. Renusingh Jogising

and Others 2008(2) Bom. C.R. ( Cri) 924 wherein the

complainant examined himself and thereafter filed two

applications. Whereby the complainant wanted to bring on

record evidence, which was later discovered. However, the

facts represented through these documents built a totally new

case which even is showing new stance diagonally opposite to

facts which were proved by the complainant. In view of above

facts the Court has set-aside the order of recalling of witnesses

by the trial Court.

12. The ratio of the said case is not applicable to the

facts of this case.

13. On the other hand, learned counsel for respondent No.2

has relied on the ratio laid down in the case of Haribhau S/o

Vithal Pharate And Others Vs. The State of Maharashtra

and Another reported in 2006(6) Mh.L.J. 540 wherein, the

application for recalling of witness was allowed. The said order

was challenged before this Court. This Court has rejected the

petition and observed that

S. 311. Powers to summon material witness, or

examine persons 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.

It does not put any limit or restriction about stage

at which a witness may be summoned or may be

allowed to be examined by the Court. It empowers the

Court to issue summons at any stage of enquiry or trial

if evidence of such witness is necessary for fair trial

and just decision. In P. Chhaganlal Daga Vs. M. Sanjay

Shaw, in a complaint under section 138 of Negotiable

Instruments Act, the complainant had completed his

evidence including his examination, cross- examnation

and re-examination. During cross-examination the

accused had denied service of statutory notice and

had disowned the signature on the acknowledgment.

After completion of evidence, case was posted for

judgment. At that stage, the complainant sought

permission to produce additional material, that is

postal receipt, to prove the service of the statutory

notice. The trial Court granted the permission, which

was set aside by the High Court. The Supreme Court

held that the High Court had erred in interfering in the

order of the trial Court. After referring to authority in

Rajendra Prasad V. Narcotic Cell, the Supreme Court

observed as follows in para 6 of the said judgment.

In deciding so, this Court has taken into account

some of the earlier decisions of this Court including

Mohanlal Shamji Soni Vs. Union of India. In the said

decision this Court had observed that the power to

receive evidence in exercise of Section 311 of the

Code could be exercised ‘’ even if evidence on both

sides is closed’’ and such jurisdiction of the Court is

dictated by the exigency of the situation and fair play.

The only factor which should govern the Court in

exercise of powers under Section 311 should be

whether such material is essential for the just decision

of the case. Even a reading of Section 311 of the Code

would show that Parliament has studded the said

provision lavishly with the word ‘’ any’’ at different

places. This would also indicate the widest range of

power conferred on the Court in that matter. It is so

stated by this Court in Ram Chancier Vs. State of

Haryana.

In Sama Ram Vs. State of Rajasthan and Another

2002 Cril.L.J. 3134, the Rajasthan High Court held that

an application for summoning material witnesses can

be filed at any stage before pronouncement of judgment

and power under Section 311 can be exercised even

during final arguments of the case. In Sidhu Sukhdev

Waghmare Vs. State of Maharashtra, 2004(1) BCR

( Cri.) 351, the learned Single Judge of this court held

that Section 311 of the Criminal Procedure Code

empowers the Court to issue summons to witness at

any stage of trial if the evidence of such witness is

essential to just decision of the case. The learned

Judge observed in para 6 as follows :

‘’However, after taking into consideration the

provisions of Section 311 of Code of Criminal

Procedure, it is clear that it is not restricted only to

issuing the summons to examine the witness who is

cited as a witness by the prosecution, but summons

can also be issued by the Curt to a witness whose

evidence is essential for the just decision of the case

even if the said witness is not cited as witness by the

prosecution’’.

In view of the provisions of Section 311 and the

above-referred authorities, it is abundantly clear that

Section 311 empowers the Court to issue summons to

any witness whose evidence is found essential for the

just decision of the case, even if such witness is not

cited by the prosecution originally and this power can

be exercised at any state of the enquiry or trial till

before the judgment is actually pronounced. ‘’

14. The facts of the said case are also not identical to the

facts of the present case. As already observed that there is no

dual opinion regarding the powers of the Court under Section

311 of the Code of Criminal Procedure. The said provision

allows the Court to summon material witnesses which is already

examined or calling new witnesses which is not cited in the

charge sheet or in the complaint but the rider is that if the

evidence of such witnesses appears to it to be essential to the

just decision of the case.

15. In present case respondent No.2 had given sufficient

opportunity to adduce his evidence. He had in fact adduced his

evidence and evidence of his witnesses and thereafter at his

request three witnesses were allowed to be examined after

closing of the case with the aid of section 311 of the Cr.P.C.

Even thereafter respondent No.2 had submitted application to

re-examine himself to prove the documents. In fact respondent

No.2 had an opportunity to prove his cheque return memo and

cause of dishonour of cheque through Bank Ofcers. But it

appears from the application at Exh. 86 respondent No.2 sought

permission of Court for his re-examination to prove cheque,

Bank receipt, cheque return memo and Bank memorandum.

The respondent No.2 had an opportunity to prove the said

documents through his own examination as well examination of

the Bank officers. But it appears that he has not proved those

documents when witnesses were examined in the Court. As far

as the point of delay is concerned, the complaint is pending

since last more than eleven years. As per the mandate of

Negotiable Instrument Act, 1871 the complainant should have

been disposed or decided within a period of six months.

Therefore, it is high time to curb the activities or tactics of

delay. With this, in my considered view the trial Court has not

taken into consideration the opportunities given to respondent

No.2 for leading evidence and proving the documents through

leading evidence. The trial Court has also lost sight of the

pendency of the litigation and not use its discretion properly.

The impugned order is required to be set-aside. Hence, I pass

the following order.

ORDER

(i) The impugned order passed by the learned Judicial

Magistrate,First Class, Patoda, District Beed below Exh. 86

dated 26.08.2019 in Summary Criminal Case No. 477 of 2010

is hereby set-aside.

(ii) Rule is made absolute.

( SURENDRA P. TAVADE )


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