Himachal Pradesh High Court
Miss Rameshwari Sharma vs State Of Himachal on 20 December, 2021Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 20th DAY OF DECEMBER, 2021
BEFORE
HON’BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL MISC.PETITION (MAIN) U/S 482 CRPC NO.31 of 2019
.
Between:-
MISS RAMESHWARI SHARMA,
D/O SHRI THAKUR CHAND,
AGED 46 YEARS, R/O VILLAGE
GHURALI, P.O. CHEHNI, TEHSIL
BANJAR, DISTRICT KULLU, H.P.
……PETITIONERS
(BY MR. CHANDER SHEKHAR SHRMA, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH.
……RESPONDENTS
(BY MR. ARVIND SHARMA AND
DESH RAJ THAKUR, ADDITIONAL
ADVOCATE GENERAL WITH MR.
NARINDER THAKUR, MR. GAURAV
SHARMA, AND MR. KAMAL
KISHORE SHARMA DEPUTY
ADVOCATE GENERALS)
Whether approved for reporting? Yes.
This petition coming on for orders this day, the Court
passed the following:
ORDER
Instant petition filed under Section 482 of Cr.P.C lays
challenge to order dated 25.08.2018, passed by learned Additional
Sessions Judge, Kullu, Himachal Pradesh, passed in Cr. Revision
No.08/2018, titled Miss Rameshwari Sharma vs. State of Himachal
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Pradesh, affirming the order dated 03.05.2018, passed by learned
Chief Judicial Magistrate, Kullu, H.P. in Police Challan No.108-1/2011,
titled State vs. Rameshwari, whereby, an application under Section 311
.
Cr.P.C., having been filed by the petitioner (hereinafter referred to as
‘accused’), seeking therein permission to examine three witnesses in
defence, came to be dismissed.
2. Precisely, the facts of the case, as emerge from the
record are that FIR No. 135 of 2010, came to be instituted against the
accused Rameshwari Sharma, who is Advocate by profession, at the
behest of complainant namely Miss Rekha Thakur, who alleged that on
21st December, 2010, Advocate named hereinabove, gave her
beatings. Record reveals that on the date of alleged incident,
complainant Rekha Thakur, had come in Court premises at Kullu in
connection with bail petition having been filed by her in case FIR
No.348/2010, dated 21.12.2010, lodged at the behest of Kiran Gautam,
w/o Bhuvneshwer Gautam, who otherwise happens to be sister of
accused, under Sections 341, 323 and 506 IPC. When above-named
Rekha Thakur, was ordered to be enlarged on bail by the court below
in FIR No.348/2010, some altercation took place inter se her and
accused herein and allegedly accused gave beatings to her and as
such, FIR No. 135 of 2010 came to be lodged against the accused
herein. After completion of investigation, police presented challan in
the case. After closure of prosecution evidence, statement of
petitioner/accused, being accused in FIR No. 135 of 2010, was
recorded under Section 313 Cr.P.C on 05.08.2016, whereafter,
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repeatedly matter came to be adjourned at the request of accused for
recording the statements of witnesses in defence. However, fact
remains that accused, failed to produce defence witnesses and as
.
such, closed her defence evidence on 26.04.2017. After nine months
of passing of order dated 26.04.2017, whereby, defence of accused
was closed, she filed an application in the month of January, 2018,
under Section 311 Cr.P.C., seeking therein permission of Court to
examine three witnesses in her defence. In application, accused
claimed that witnesses proposed to be examined by her are essential
for just decision of case.
r Learned Chief Judicial Magistrate, Kullu,
having taken note of the fact that despite repeated opportunities,
accused failed to lead evidence in defence, dismissed the application
vide order dated 03.05.2018. Being aggrieved and dissatisfied with the
aforesaid order, accused preferred Criminal Revision Petition before
Additional Sessions Judge, Kullu, H.P., which was also dismissed vide
order dated 25.08.2018. In the aforesaid background, accused has
approached this Court in the instant proceedings, praying therein to
allow her application filed under Section 311 Cr.P.C, after setting aside
the aforesaid orders passed by learned Additional Sessions Judge,
Kullu and learned Chief Judicial Magistrate, Kullu.
3. Mr. Chander Shekhar, learned counsel, representing the
accused, while referring to provision contained under Section 311
Cr.P.C, contends that Court enjoys vast powers to summon/re-examine
or recall a witness, at any stage of proceedings, especially, when same
is necessary for proper adjudication of the case. While referring to the
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statements made by prosecution witnesses, especially, complainant
Rekha Thakur, Mr. Sharma, submits that once, it has specifically come
in her statement that at the time of alleged incident, many lawyers were
.
present on the spot, prayer made in the application under Section 311
Cr.P.C having been filed by the accused seeking therein permission to
examine three Advocates and one Duty Constable, ought to have
been allowed by the court below, enabling it to arrive at a just decision.
In support of his submissions, learned counsel representing the
accused, also placed reliance upon the judgment rendered by this
Court dated 16.03.2018, passed in Cr. Revision No.313 of 2017, titled
Sunder Lal vs. Urmila Thakur.
4. Mr. Arvind Sharma, learned Additional Advocate General,
while supporting the orders impugned in the instant proceedings,
contends that since despite repeated opportunities, accused failed to
lead evidence in defence, no illegality, if any, can be said to have been
committed by the court below while dismissing her application filed
under Section 311 Cr.P.C. Mr. Sharma, has further argued that record
itself reveals that accused herself closed her evidence on 26.04.2017
and thereafter, kept mum for almost 9 months and when case was
ordered to be listed for final arguments, she filed an application under
Section 311 Cr.P.C, which, at that stage, otherwise, could not be
entertained by the Court.
5. Having heard learned counsel representing the parties
and perused the material available on record, this Court finds that
accused despite sufficient opportunities afforded by the court below,
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failed to lead evidence in defence and thereafter, herself closed her
evidence on 26.04.2017 and as such, it cannot be said that she was
not aware of order dated 26.04.2017, whereby, her defence was
.
ordered to be closed that too on her own statement.
6. True, it is, that Court enjoys vast powers to summon any
person as a witness or recall/re-examine a witnesses, provided same is
essentially required for just decision of the case, but such exercise of
power though can be exercised, at any stage of inquiry, trial or
proceedings under this Code, but with utmost caution and sparingly. It
is well established principle of criminal jurisprudence that discovery,
vindication and establishment of truth are main purposes of underlying
object of courts of justice. It is also well settled that wider the power,
greater the responsibility upon Court, which exercises such power and
exercise of such power cannot be untrammeled and arbitrary, rather
same must be guided by object of arriving at a just decision of the
case. Close scrutiny of aforesaid provision of law further suggests that
Section 311 has two parts; first part reserves a right to the parties to
move an appropriate application for examination/re-examination of a
witness at any stage; but definitely second part is mandatory that casts
a duty upon court to examine/re-examine or recall or summon a
witness at any stage, if his/her evidence appears to be essential for just
decision of case because definitely the underlying object of aforesaid
provision of law is to ensure that there is no failure of justice on
account of mistake on the part of either of parties in bringing valuable
piece of evidence or leaving an ambiguity in the statements of
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witnesses examined from either side. Reliance is placed upon the
judgment passed by Hon’ble Apex Court in Zahira Habibullah Sheikh
(5) and another vs. State of Gujarat and others (2006)3 SCC 374,
.
wherein, Hon’ble Apex Court, held as under:-
“27. The object underlying Section 311 of the Code is
that there may not be failure of justice on account of
mistake of either party in bringing the valuable
evidence on record or leaving ambiguity in the
statements of the witnesses examined from either
side. The determinative factor is whether it is
essential to the just decision of the case. The section
is not limited only for the benefit of the accused, and
it will not be an improper exercise of the powers of
the Court to summon a witness under the Section
merely because the evidence supports the case for
the prosecution and not that of the accused. The
section is a general section which applies to all
proceedings, enquiries and trials under the Code and
empowers Magistrate to issue summons to any
witness at any stage of such proceedings, trial or
enquiry. In Section 311 the significant expression that
occurs is “at any stage of inquiry or trial or other
proceeding under this Code”. It is, however, to be
borne in mind that whereas the section confers a
very wide power on the Court on summoning
witnesses, the discretion conferred is to be exercised
judiciously, as the wider the power the greater is 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. Section 60, 64 and 91 of the Indian
Evidence Act, 1872 (in short, ‘Evidence Act’) are
based on this rule. The Court is not empowered
under the provisions of the Code to compel either the
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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 the 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
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 provision of Section
311, but under the Evidence Actt 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 Jamat Raj Kewalji Govani v. State of
Maharashtra, (AIR 1968 SC 178).
30. Right from the inception of the judicial system it
has been accepted that discovery, vindication and
establishment of truth are the main purposes
underlying existence of Courts of justice. The
operative principles for a fair trial permeate the
common law in both civil and criminal contexts.
Application of these principles involves a delicate
judicial balancing of competing interests in a criminal
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trial, the interests of the accused and the public and
to a great extent that of the victim have to be
weighed not losing sight of the public interest
involved in the prosecution of persons who commit
offences.
.
7. Hon’ble Apex Court in Raja Ram Prasad Yadav vs.
State of Bihar and another (2013) 14 SCC 461, has held that power
under Section 311 Cr.P.C. to summon any person or witness or
examine any person already examined can be exercised at any stage
provided the same is required for just decision of the case. It may be
profitable to take note of the following paras of the judgment:-
“14. A conspicuous reading of Section 311 Cr.P.C.
would show that widest of the powers have been
invested with the Courts when it comes to the
question of summoning a witness or to recall or re-
examine any witness already examined. A reading
of the provision shows that the expression “any”
has been used as a pre-fix to “court”, “inquiry”,
“trial”, “other proceeding”, “person as a witness”,
“person in attendance though not summoned as a
witness”, and “person already examined”. By using
the said expression “any” as a pre-fix to the various
expressions mentioned above, it is ultimately stated
that all that was required to be satisfied by the Court
was only in relation to such evidence that appears
to the Court to be essential for the just decision of
the case. Section 138 of the Evidence Act,
prescribed the order of examination of a witness in
the Court. Order of re-examination is also
prescribed calling for such a witness so desired for
such re-examination. Therefore, a reading of
Section 311 Cr.P.C. and Section 138 Evidence Act,
insofar as it comes to the question of a criminal trial,
the order of re-examination at the desire of any
person under Secton 138, will have to necessarily
be in consonance with the prescription contained in
Secton 311 Cr.P.C. It is, therefore, imperative that
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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.
Therefore, the paramount requirement is just
decision and for that purpose the essentiality of a
person to be recalled and re-examined has to be
ascertained. To put it differently, while such a widest
power is invested with the Court, it is needless to
state that exercise of such power should be made
judicially and also with extreme care and caution.
15. In this context, we also wish to make a
reference to certain decisions rendered by this
Court on the interpretation of Section 311 Cr.P.C.
where, this Court highlighted as to the basic
principles which are to be borne in mind, while
dealing with an application under Section 311
Cr.P.C.
15.1 In the decision reported in Jamatraj Kewalji
Govani vs. State of Maharashtra – AIR 1968 SC
178, this Court held as under in paragraph 14:-
“14. It would appear that in our criminal jurisdiction,
statutory law confers a power in absolute terms to
be exercised at any stage of the trial to summon a
witness or examine one present in court or to recall
a witness already examined, and makes this the
duty and obligation of the Court provided the just
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decision of the case demands it. In other words,
where the court exercises the power under the
second part, the inquiry cannot be whether the
accused has brought anything suddenly or
unexpectedly but whether the court is right in
.
thinking that the new evidence is needed by it for a
just decision of the case. If the court has acted
without the requirements of a just decision, the
action is open to criticism but if the court’s action is
supportable as being in aid of a just decision the
action cannot be regarded as exceeding the
jurisdiction.” (Emphasis added) 15.2 In the decision
reported in Mohanlal Shamji Soni vs. Union of India
and another – 1991 Suppl.(1) SCC 271, this Court
again highlighted the importance of the power to be
exercised under Section 311Cr.P.C. as under in
paragraph 10:-
“10….In order to enable the court to find out the
truth and render a just decision, the salutary
provisions of Section 540 of the Code (Section 311
of the new Code) are enacted where under any
court by exercising its discretionary authority at any
stage of enquiry, trial or other proceeding can
summon any person as a witness or examine any
person in attendance though not summoned as a
witness or recall or re- examine any person in
attendance though not summoned as a witness or
recall and reexamine any person already examined
who are expected to be able to throw light upon the
matter in dispute; because if judgments happen to
be rendered on inchoate, inconclusive and
speculative presentation of facts, the ends of justice
would be defeated.” 15.3 In the decision in Raj Deo
Sharma (II) vs. State of Bihar – 1999 (7) SCC 604,
the proposition has been reiterated as under in
paragraph 9:-
“9. We may observe that the power of the court as
envisaged in Section 311 of the Code of Criminal
Procedure has not been curtailed by this Court.
Neither in the decision of the five-Judge Bench in
A.R. Antulay case nor in Kartar Singh case such
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power has been restricted for achieving speedy
trial. In other words, even if the prosecution
evidence is closed in compliance with the directions
contained in the main judgment it is still open to the
prosecution to invoke the powers of the court under
.
Section 311 of the Code. We make it clear that if
evidence of any witness appears to the court to be
essential to the just decision of the case it is the
duty of the court to summon and examine or recall
and re-examine any such person.” (Emphasis
added) 15.4. In U.T. of Dadra and Nagar Haveli and
Anr. Vs Fatehsinh Mohansinh Chauhan – 2006 (7)
SCC 529, the decision has been further elucidated
as under in paragraph 15:-
“15. A conspectus of authorities referred to above
would show that the principle is well settled that the
exercise of power under Section 311 Cr.PC should
be resorted to only with the object of finding out the
truth or obtaining proper proof of such facts which
lead to a just and correct decision of the case, this
being the primary duty of a criminal court. Calling a
witness or re-examining a witness already
examined for the purpose of finding out the truth in
order to enable the court to arrive at a just decision
of the case cannot be dubbed as “filling in a lacuna
in the prosecution case” unless the facts and
circumstances of the case make it apparent that the
exercise of power by the court would result in
causing serious prejudice to the accused resulting
in miscarriage of justice.” (Emphasis supplied) .
15.5 In Iddar & Or. vs. Aabida & Anr. – AIR 2007 SC
3029, the object underlying under Section 311
Cr.P.C., has been stated as under in paragraph 9:-
“9…27. The object underlying Section 311 of the
Code is that there may not be failure of justice on
account of mistake of either party in bringing the
valuable evidence on record or leaving ambiguity in
the statements of the witnesses examined from
either side. The determinative factor is whether it is
essential to the just decision of the case. The
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section is not limited only for the benefit of the
accused, and it will not be an improper exercise of
the powers of the court to summon a witness under
the section merely because the evidence supports
the case for the prosecution and not that of the
.
accused. The section is a general section which
applies to all proceedings, enquiries and trials under
the Code and empowers Magistrate to issue
summons to any witness at any stage of such
proceedings, trial or enquiry. In Sectiion 311 the
significant expression that occurs is ‘at any stage of
inquiry or trial or other proceeding under this Code’.
It is, however, to be borne in mind that whereas the
section confers a very wide power on the court on
summoning witnesses, the discretion conferred is to
be exercised judiciously, as the wider the power the
greater is the necessity for application of judicial
mind.” (Emphasis added)
15.6 In P.Sanjeeva Ra vs Sate of A.P.- AIR 2012 SC
2242, the scope of Section 311 Cr.P.C. has been
highlighted by making reference to an earlier
decision of this Court and also with particular
reference to the case, which was dealt with in that
decision in paragraphs 20 and 23, which are as
under:-
“20. Grant of fairest opportunity to the accused to
prove his innocence was the object of every fair
trial, observed this Court in Hoffman Andreas vs.
Inspector of Cutoms, Amristsar (2000) 10 SCC 430.
The following passage is in this regard apposite:
“6. …In such circumstances, if the new counsel
thought to have the material witnesses further
examined, the Court could adopt latitude and a
liberal view in the interest of justice, particularly
when the court has unbridled powers in the matter
as enshrined in Section 311 of the Code. After all
the trial is basically for the prisoners and courts
should afford the opportunity to them in the fairest
manner possible.”
23. We are conscious of the fact that recall of the
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witnesses is being directed nearly four years after
they were examined-in-chief about an incident that
is nearly seven years old. Delay takes a heavy toll
on the human memory apart from breeding
cynicism about the efficacy of the judicial system to
.
decide cases within a reasonably foreseeable time
period. To that extent the apprehension expressed
by Mr. Rawal, that the prosecution may suffer
prejudice on account of a belated recall, may not be
wholly without any basis. Having said that, we are
of the opinion that on a parity of reasoning and
looking to the consequences of denial of opportunity
to cross-examine the witnesses, we would prefer to
err in favour of the appellant getting an opportunity
rather than protecting the prosecution against a
possible prejudice at his cost. Fairness of the trial is
a virtue that is sacrosanct in our judicial system and
no price is too heavy to protect that virtue. A
possible prejudice to prosecution is not even a
price, leave alone one that would justify denial of a
fair opportunity to the accused to defend himself.”
(Emphasis in original) 15.7 In a recent decision of
this Court in Sheikh Jumman vs. State of
Maharashtra – (2012) 9 SCALE 18, the above
referred to decisions were followed.
16. Again in an unreported decision rendered by
this Court dated 08.05.2013 in Natasha Singh vs.
CBI (State)-Criminal Appeal No.709 of 2013, where
one of us was a party, various other decisions of
this Court were referred to and the position has
been stated as under in paragraphs 15 and 16:
“15. The scope and object of the provision is to
enable the Court to determine the truth and to
render a just decision after discovering all relevant
facts and obtaining proper proof of such facts, to
arrive at a just decision of the case. Power must be
exercised judiciously and not capriciously or
arbitrarily, as any improper or capricious exercise of
such power may lead to undesirable results. An
application under Section 311 Cr.P.C. must not be
allowed only to fill up a lacuna in the case of the
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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 Cr.P.C. must,
therefore, be invoked by the Court only in order to
meet the ends of justice, for strong and valid
reasons, and the same must be exercised with
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.
16. Fair trial is the main object of criminal
procedure, and it is the duty of the court to ensure
that such fairness is not hampered or threatened in
any manner. Fair trial entails the interests of the
accused, the victim and of the society, and
therefore, fair trial includes the grant of fair and
proper opportunities to the person concerned, and
the same must be ensured as this is a
constitutional, as well as a human right. Thus, under
no circumstances can a person’s right to fair trial be
jeopardized. Adducing evidence in support of the
defence is a valuable right. Denial of such right
would amount to the denial of a fair trial. Thus, it is
essential that the rules of procedure that have been
designed to ensure justice are scrupulously
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followed, and the court must be zealous in ensuring
that there is no breach of the same. (Vide Talab Haji
Hussain vs. Madhukar Purshottam Mondkar & Anr.,
AIR 1958 SC 376; Zahira Habibulla H. Sheikh &
Anr. V State of Gujarat & Ors. AIR 2004 SC 3114;
.
Zahira Babibullah Sheikh & Anr. v. State of Gujarar
& Ors., AIR 2006 SC 1367; Kalyani Baskar (Mrs.) v.
M.S. Sampoornam (Mrs.) (2007) 2 SCC 258; Vijay
Kumar vs. State of U.P. & Anr., (2011) 8 SCC 136;
and Sudevanand v. State through C.B.I. (2012) 3
SCC 387.)”
17. From a conspectus consideration of the above
decisions, while dealing with an application under
Section 311 Cr.P.C. read along with Section 138 of
the Evidence Act, we feel the following principles
will have to be borne in mind by the Courts:
a) Whether the Court is right in thinking that the new
evidence is needed by it? Whether the evidence
sought to be led in under Section 311 is noted by
the Court for a just decision of a case?
b) The exercise of the widest discretionary power
under Section 311 Cr.P.C. should ensure that the
judgment should not be rendered on inchoate,
inconclusive and speculative presentation of facts,
as thereby the ends of justice would be defeated.
c) If evidence of any witness appears to the Court to
be essential to the just decision of the case, it is the
power of the Court to summon and examine or
recall and reexamine any such person.
d) The exercise of power under Section 311 Cr.P.C.
should be resorted to only with the object of finding
out the truth or obtaining proper proof for such facts,
which will lead to a just and correct decision of the
case.
e) The exercise of the said power cannot be dubbed
as filling in a lacuna in a prosecution case, unless
the facts and circumstances of the case make it
apparent that the exercise of power by the Court
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would result in causing serious prejudice to the
accused, resulting in miscarriage of justice.
f) The wide discretionary power should be exercised
judiciously and not arbitrarily.
.
g) The Court must satisfy itself that it was in every
respect essential to examine such a witness or to
recall him for further examination in order to arrive
at a just decision of the case.
h) The object of Section 311 Cr.P.C. simultaneously
imposes a duty on the Court to determine the truth
and to render a just decision.
i) The Court arrives at the conclusion that additional
evidence is necessary, not because it would be
impossible to pronounce the judgment without it, but
because there would be a failure of justice without
such evidence being considered.
j) Exigency of the situation, fair play and good
sense should be the safe guard, while exercising
the discretion. The Court should bear in mind that
no party in a trial can be foreclosed from correcting
errors and that if proper evidence was not adduced
or a relevant material was not brought on record
due to any inadvertence, the Court should be
magnanimous in permitting such mistakes to be
rectified.
k) The Court should be conscious of the position
that after all the trial is basically for the prisoners
and the Court should afford an opportunity to them
in the fairest manner possible. In that parity of
reasoning, it would be safe to err in favour of the
accused getting an opportunity rather than
protecting the prosecution against possible
prejudice at the cost of the accused. The Court
should bear in mind that improper or capricious
exercise of such a discretionary power, may lead to
undesirable results.
l) The additional evidence must not be received as
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a disguise or to change the nature of the case
against any of the party.
m) The power must be exercised keeping in mind
that the evidence that is likely to be tendered, would
.
be germane to the issue involved and also ensure
that an opportunity of rebuttal is given to the other
party.
n) The power under Section 311 Cr.P.C. must
therefore, be invoked by the Court only in order to
meet the ends of justice for strong and valid
reasons and the same must be exercised with care,
caution and circumspection. The Court should bear
in mind that fair trial entails the interest of the
accused, the victim and the society and, therefore,
the grant of fair and proper opportunities to the
persons concerned, must be ensured being a
constitutional goal, as well as a human right.”
8. At this stage, this Court deems it proper to place reliance
upon judgment rendered by Hon’ble Apex Court in Mannan SK and
others vs. State of West Bengal and another AIR 2014 SC 2950,
wherein the Hon’ble Court has held as under:-
“10. The aim of every court is to discover truth.
Section 311 of the Code is one of many such
provisions of the Codewhich strengthen the arms of a
court in its effort to ferret out the truth by procedure
sanctioned by law. It is couched in very wide terms. It
empowers the court at any stage of any inquiry, trial or
other proceedings under the Code to summon any
person as a witness or examine any person in
attendance, though not summoned as witness or
recall and re-examine already examined witness. The
second part of the Section uses the word ‘shall’. It
says that the court shall summon and examine or
recall or re-examine any such person if his evidence
appears to it to be essential to the just decision of the
case. The words ‘essential to the just decision of the
case’ are the key words. The court must form an
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opinion that for the just decision of the case recall or
reexamination of the witness is necessary. Since the
power is wide it’s exercise has to be done with
circumspection. It is trite that wider the power greater
is the responsibility on the courts which exercise it.
.
The exercise of this power cannot be untrammeled
and arbitrary but must be only guided by the object of
arriving at a just decision of the case. It should not
cause prejudice to the accused. It should not permit
the prosecution to fill-up the lacuna. Whether recall of
a witness is for filling-up of a lacuna or it is for just
decision of a case depends on facts and
circumstances of each case. In all cases it is likely to
be argued that the prosecution is trying to fill-up a
lacuna because the line of demarcation is thin. It is for
the court to consider all the circumstances and decide
whether the prayer for recall is genuine.”
9. Aforesaid exposition of law clearly suggests that a fair
trial is main object of criminal jurisprudence and it is duty of court to
ensure such fairness is not hampered or threatened in any manner. It
has been further held in the aforesaid judgments that fair trial entails
interests of accused, victim and society and therefore, grant of fair and
proper opportunities to the persons concerned, must be ensured being
a constitutional goal, as well as a human right. Hon’ble Apex Court has
categorically held in the aforesaid judgment that adducing evidence in
support of the defence is a valuable right and denial of such right would
amount to denial of a fair trial.
10. In the case at hand there can’t be any dispute that
accused, who herself is an Advocate by profession, has been negligent
in prosecuting her case, but witnesses proposed to be examined by her
in her defence, may be necessary to arrive at a just decision in the
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case. Though, this Court is an agreement with Mr. Arvind Sharma,
learned Additional Advocate General that no plausible explanation ever
came to be rendered on record by the accused in her application filed
.
under Section 311 Cr.P.C that why at the first instance, she failed to
examine witnesses, which are now proposed to be examined by
seeking permission of the Court under Section 311 Cr.P.C, but as has
been laid by the Hon’ble Apex Court in cases supra, that underlying
object of aforesaid provision of law is to ensure that there is no failure
of justice on account of mistake on the part of either of parties in
bringing valuable piece of evidence or leaving an ambiguity in the
statements of witnesses examined from either side and as such, court
below with a view to ensure that ultimate truth comes to the fore ought
to have examined the prayer of the petitioner/accused in the light of
entire evidence led on record by the prosecution, wherein, admittedly,
it has come on record that at the time of alleged incident, some
Advocates were present on the spot, if it is so, they could be best
persons to support the case of prosecution. Since, prosecution for one
reason or the other, failed to associate/cite Advocates as witnesses,
application filed by accused under Section 311 Cr.P.C, seeking therein
permission of Court to examine two Advocates and one Constable on
duty as witnesses, ought not have rejected by the court below in
cursory manner. Both the courts below while considering the prayer
made on behalf of the petitioner to afford her one opportunity to lead
evidence in her defence, have swayed away with the fact that accused
herself closed her evidence on 26.04.2017. Once Section 311 Cr.P.C
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provides that such power can be exercised by the Court, at any stage
of inquiry, trial or other proceedings under this Code, prayer made on
behalf of the petitioner/accused could have been considered by the
.
court below at any time before pronouncement of the judgment.
Statement of PW-1, Rekha Thakur, who is complainant in the case,
itself suggests that at the time of alleged incident, number of lawyers
were present on the spot, but since, such fact never came to be
mentioned in the police report filed under Section 173 Cr.P.C, accused
failed to examine advocates in her defence. Once, such factum came
to the knowledge of the accused after recording of statement of
complainant, wherein, she herself admitted factum with regard to
presence of some of advocates, she filed an application under Section
311 Cr.PC, though at belated stage. Hon’ble Supreme Court in
Rajaram Prasad Yadav vs State of Bihar & Anr. 2013(4) SCC 461,
while culling out certain principles required to be borne in mind by the
Court while dealing with application filed under Section 311 Cr.P.C, has
held that the exercise of the widest discretionary power under Section
311 Cr.P.C. should ensure that the judgment should not be rendered on
inchoate, inconclusive, speculative presentation of facts, as thereby the
ends of justice would be defeated. Hon’bel Apex Court has further held
that if evidence of any witness appears to the court to be essential to
the just decision of the case, it is the duty of the court to summon and
examine or recall and re-examine any such person because very
object of Section 311 Cr.P.C. is to find out the truth and render a just
decision. Lastly, in the aforesaid judgment, Hon’ble Apex Court has
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held that the Court should bear in mind that no party in a trial can be
foreclosed from correcting errors and that if proper evidence was not
adduced or a relevant material was not brought on record due to any
.
inadvertence, the Court should be magnanimous in permitting such
mistakes to be rectified.
11. Consequently, in view of the detailed discussion made
herein above as well as the law discussed supra, this Court finds merit
in the present petition and accordingly, same is allowed. Orders dated
25.08.2018, passed by learned Additional Sessions Judge, Kullu,
Himachal Pradesh, passed in Cr. Revision No.08/2018 and
03.05.2018, passed by Chief Judicial Magistrate, Kullu, H.P. in Police
Challan No.108-1/2011, are hereby quashed and set aside. Application
filed under Section 311 Cr.P.C, is allowed and petitioner/accused is
permitted to examine the witnesses detailed in the application, on the
date to be fixed by court below.
Learned counsel representing the petitioner undertakes
to cause presence of accused before court below on 31.12.2021,
enabling it to fix a date for recording the statements of aforesaid
witnesses.
(Sandeep Sharma)
Judge
20th December, 2021
(reena)
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