2008 JTR(SC) 1145
2009 1 AD(CR) 223 ; 2008 4 AICLR 61 ; 2008 AIR(SC) 591 ; 2008 Supp AIR(SC) 591 ; 2008 AIR(SCW) 6398 ; 2008 2 ALD(Cri)(SC) 601 ; 2009 AllMR(Cri)(SC) 948 ; 2008 4 BBCJ(SC) 137 ; 2008 4 CriCC 162 ; 2008 Supp CriLR 393 ; 2008 CrLJ 4690 ; 2008 4 EastCrC(SC) 247 ; 2008 228 ELT 507 ; 2008 3 GLH 634 ; 2008 2 OLR 638 ; 2008 3 RCR(Cri) 897 ; 2008 10 Scale 648 ; 2008 11 SCC 108 ; 2009 2 SCC(Cri) 455 ; 2008 11 SCR 571 ; 2011 4 WLN 4 ; 2008 KHC 6674 ; 2008 5 Supreme 679
2008(5) Supreme 679
Supreme Court of india
Dr. Arijit Pasayat and H.S. Bedi, JJ.
Godrej Pacific Tech. Ltd. — Appellant
versus
Computer Joint India Ltd. — Respondent
Criminal Appeal No. 1181 of 2008
(Arising out of S.L.P. (Crl.) No. 6396 of 2006)
Decided on : 30-07-2008
Important Point
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.
Act
Referred
:CRIMINAL PROCEDURE CODE : S.313, S.311
EVIDENCE ACT : S.91, S.60, S.64
(A) The appeal pertains to a challenge against a Single Judge order of the Punjab and Haryana High Court that rejected an application for re-examination of witnesses under Section 311 of the Code of Criminal Procedure, 1973. The provisions of Sections 311, 313, and the Evidence Act (Sections 60, 64, and 91) govern the procedural framework for summoning, examining, and recalling witnesses to ensure a just decision. Section 311 Cr.P.C. provides the court with a wide discretion to summon or examine any person whose evidence appears essential, while also imposing a mandatory duty on the court to do so when necessary for arriving at the truth. The Evidence Act sections underscore the principle of producing the best available evidence and guide the court in drawing adverse inferences when such evidence is missing. The interplay of these provisions is central to determining whether the trial court correctly exercised its powers in the context of the case.
(B) The core legal principles include the broad discretionary power of the court under Section 311 Cr.P.C. to summon or recall witnesses at any stage, the mandatory obligation to do so when evidence is essential for a just decision, and the limitation on compelling parties to examine specific witnesses. The court must judicially exercise this discretion, considering the necessity of filling evidentiary gaps and ensuring that cross-examination rights under the Evidence Act are preserved, particularly when court-summoned witnesses are involved.
Facts of the case:
The complaint was filed in December 1996, evidence closed in March 2004, and examination concluded in July 2004. The appellant sought re-examination of a witness whose examination in chief had occurred in July 2003, during which an objection was raised regarding misleading questions. The trial court rejected the application, a decision upheld by the High Court, on the ground that the evidence was already closed and the examination was complete.
Findings of Court:
The High Court and the trial court concluded that the application for re-examination was untenable as the proceedings had progressed beyond the stage where such recall could be permitted, and the evidence had been sufficiently closed.
Issues:
Whether the trial court erred in rejecting the application for re-examination of the witness and whether the High Court failed to exercise its supervisory jurisdiction to interfere with the trial courts order.
Ratio Decidendi:
The court determined that the trial courts rejection was procedurally sound because the examination was complete, evidence had been closed, and the application for re-examination was not maintainable at that stage, leading to a proper discharge of judicial duty under Section 311 Cr.P.C.
Result:
The appeal is allowed, and the trial court is directed to fix a date within three months to call the relevant witnesses and accord an opportunity to the accused before proceeding with the trial.
(A) The appeal pertains to a challenge against a Single Judge order of the Punjab and Haryana High Court that rejected an application for re-examination of witnesses under Section 311 of the Code of Criminal Procedure, 1973. The provisions of Sections 311, 313, and the Evidence Act (Sections 60, 64, and 91) govern the procedural framework for summoning, examining, and recalling witnesses to ensure a just decision. Section 311 Cr.P.C. provides the court with a wide discretion to summon or examine any person whose evidence appears essential, while also imposing a mandatory duty on the court to do so when necessary for arriving at the truth. The Evidence Act sections underscore the principle of producing the best available evidence and guide the court in drawing adverse inferences when such evidence is missing. The interplay of these provisions is central to determining whether the trial court correctly exercised its powers in the context of the case.
(B) The core legal principles include the broad discretionary power of the court under Section 311 Cr.P.C. to summon or recall witnesses at any stage, the mandatory obligation to do so when evidence is essential for a just decision, and the limitation on compelling parties to examine specific witnesses. The court must judicially exercise this discretion, considering the necessity of filling evidentiary gaps and ensuring that cross-examination rights under the Evidence Act are preserved, particularly when court-summoned witnesses are involved.
Facts of the case:
The complaint was filed in December 1996, evidence closed in March 2004, and examination concluded in July 2004. The appellant sought re-examination of a witness whose examination in chief had occurred in July 2003, during which an objection was raised regarding misleading questions. The trial court rejected the application, a decision upheld by the High Court, on the ground that the evidence was already closed and the examination was complete.
Findings of Court:
The High Court and the trial court concluded that the application for re-examination was untenable as the proceedings had progressed beyond the stage where such recall could be permitted, and the evidence had been sufficiently closed.
Issues:
Whether the trial court erred in rejecting the application for re-examination of the witness and whether the High Court failed to exercise its supervisory jurisdiction to interfere with the trial courts order.
Ratio Decidendi:
The court determined that the trial courts rejection was procedurally sound because the examination was complete, evidence had been closed, and the application for re-examination was not maintainable at that stage, leading to a proper discharge of judicial duty under Section 311 Cr.P.C.
Result:
The appeal is allowed, and the trial court is directed to fix a date within three months to call the relevant witnesses and accord an opportunity to the accused before proceeding with the trial.
For the Appellant :Raman K. Sharma, Rajesh K. Sharma ad Ms. Shalu Sharma, Advocates.
For the Respondent:Biswajeet Bhattacharya, Sr. Adv. Ranjan Mukherjee, Advocate.
Judgment
Dr. Arijit Pasayat, J. —
1.Leave granted.
2.Challenge in this appeal is to the Judgment of a learned Single Judge of the Punjab and Haryana High Court, rejecting the petition filed by the appellant. Before the High Court challenge was to the Order passed by the learned Judicial Magistrate, Chandigarh, rejecting the application of the appellant seeking re-examination of the witnesses already examined in terms of Section 311 of the Code of Criminal Procedure, 1973 (in short ‘Code’).
3.The application was rejected by the Trial Court primary on the ground that the complaint was filed on 19.12.1996. The evidence was closed on 11.3.2004. Under Section 313 Cr.P.C. examination was over on 12.7.2004. The High Court concurred with the view of the Trial Court.
4.In support of the appeal learned counsel for the appellant submitted that the examination in chief of the witness Shri Deepak Jotshi was done on 29.7.2003. On that particular date, the counsel for the accused had taken an objection that the applicants counsel was asking misleading questions. Hence the trial Court had directed the witness to give his statement and as a layman, he gave his statement. But inadvertently he had not proved the relevant documents i.e. cheques, cheque returning memos, legal notice, courier receipt, letter from complainant bank, whereas, some of the above said documents had already been proved by other witness, other than the complainant.
5.Learned counsel for the respondents supported Orders of the court below.
6.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.”
7.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.
8.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.
9.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.
10.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 cross-examine a witness who is not his own witness. Since a witness summoned by the court could not be termed a witness of any particular party, the court should give the right of cross-examination to the complainant. These aspects were highlighted in Jamatraj Kewalji Govani v. State of Maharashtra,1 (1967 (3) SCR 415).
11.The above position was highlighted in Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors.,2 [(2006) 3 SCC 374].
12.In the background facts of the case we are of the view that the trial court ought to have permitted the prayer of the appellant. That being so, the rejection of the prayer by trial court was not proper and the High Court should not have declined to interfere.
12.The appeal is allowed. The Trial Court shall fix a date within three months and call the witnesses in question and accord opportunity to the accused persons and thereafter proceed with the trial.
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