Punjab-Haryana High Court
Khalid @ Khalli vs State Of Haryana on 5 April, 2021 IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
125
CRM-M-2702-2021
Date of decision: 05.04.2021
Khalid @ Khalli …..Petitioner
Versus
State of Haryana …..Respondent
CORAM: HON’BLE MR. JUSTICE ARUN KUMAR TYAGI
Present : Mr. Gautam Dutt, Advocate
for the petitioner.
Mr. Ranvir Singh Arya, Addl. A.G., Haryana
for the respondent-State.
****
ARUN KUMAR TYAGI, J. (ORAL)
1. The petitioner has filed present petition under Section 482
of the Code of Criminal Procedure, 1973 (for short, “the Cr.P.C.”) for
quashing of order dated 10.12.2020 passed by learned Additional
Sessions Judge, Mewat in Sessions Case No.554 of 2018 titled as ‘State
Vs. Khalid @ Khalli’ FIR No.147 dated 03.09.2018 registered under
Sections 148 and 302 read with Section 149 of the Indian Penal Code,
1860 (for short, “the IPC”) and Section 25 of the Arms Act, 1959 at
Police Station Bichhor, whereby the application filed by the petitioner
under Section 311 of the Cr.P.C. for summoning of the Assistant
Director, Ballistic, Forensic Science Laboratory, Madhuban, District
Karnal was dismissed.
2. Briefly stated, the facts giving rise to the filing of the
present petition are that on 02.09.2018, Aadil and Aleem brothers of
complainant-Aamil Rasid @ Azad and accused Khalid and Subin went
to Village Rai for playing volleyball match. Amount of Rs.4,900/- had
1 of 10
::: Downloaded on – 04-06-2021 19:22:48 :::
CRM-M-2702-2021 -2-
been collected which was to be paid on decision of the match to the
winning team. The amount was entrusted to accused Khalid. They lost
the match and his brother Aadil asked accused Khalid to pay the
amount of Rs.4,900/- to Rai team but accused Khalid did not give the
money and accused Khalid and Subin abused and intimidated his
brothers. In the night at about 09:00 P.M., Yasin, Ayyub and Subin and
2-3 other unknown persons armed with batons in their hands and
Khalid armed with pistol came and encircled him and other family
members. Yasin asked accused Khalid to shoot him and accused Khalid
fired a shot from pistol which he was carrying which hit him in the left
side of his stomach. Initially the FIR was registered under Sections 148,
307 read with Section 149 of the IPC and Section 25 of the Arms Act,
1959 and on death of complainant Aamil Rasid @ Azad, Section 302 of
the IPC was added. The police investigated the case and on completion
of investigation, charge-sheeted accused Khalid. During trial, the
Public Prosecutor tendered in evidence the report of the Ballistic Expert
as Ex.PX. Subsequently, the petitioner filed application under Section
311 of the Cr.P.C. for summoning the Assistant Director, Ballistic,
Forensic Science Laboratory, Madhuban, District Karnal for cross-
examination. The application was dismissed by learned Additional
Sessions Judge, Mewat vide impugned order dated 10.12.2020 on the
ground that examination of the Ballistic Expert was not required for
just decision of the present case.
3. Feeling aggrieved, the petitioner has filed the present
petition.
4. The petition has been opposed by the respondent-State in
2 of 10
::: Downloaded on – 04-06-2021 19:22:48 :::
CRM-M-2702-2021 -3-
terms of reply filed by way of affidavit of Shamsher Singh, HPS,
Deputy Superintendent of Police, Punhana, District Nuh.
5. I have heard arguments addressed by learned Counsel for
the petitioner and learned State Counsel and gone through the material
placed on record.
6. Learned Counsel for the petitioner has submitted that the
occurrence took place on 02.09.2018, FIR was registered on 03.09.2018
and sample was sent to FSL on 03.10.2018 and there was hardly any
possibility of deformation/mutilation of the bullet within this short
period when the parcels remained sealed. If the bullet was the same
which was fired and taken out from the body of the deceased then why
blood was not found on it and threads sent along with it in sealed parcel
for examination to FSL. Cross-examination of the Assistant Director,
Ballistic, Forensic Science Laboratory, Madhuban, District Karnal is
necessary for just decision of the case. The application has been
wrongly dismissed. Therefore, the petition may be allowed, impugned
order dated 10.12.2020 may be set aside and the petitioner may be
allowed to cross-examine the Assistant Director, Ballistic, Forensic
Science Laboratory, Madhuban, District Karnal with respect to the
above said points.
7. On the other hand, learned State Counsel has argued that
report of the Ballistic Expert is admissible per se. The petitioner does
not have any right to cross-examine the Ballistic Expert. The petitioner
filed the application after expiry of more than one year just to fill up the
lacuna. The application has been rightly dismissed by learned
Additional Sessions Judge, Mewat. The impugned order does not suffer
3 of 10
::: Downloaded on – 04-06-2021 19:22:48 :::
CRM-M-2702-2021 -4-
from any illegality. Therefore, the petition may be dismissed.
8. Section 293 of the Cr.P.C. makes reports of certain
Government Scientific Experts to be per se admissible in evidence and
permits the same to be used as evidence in any inquiry, trial or other
proceedings under the Cr.P.C. The same reads as under:-
“293. Reports of certain Government scientific
experts.-(1)Any document purporting to be a report under
the hand of a Government scientific expert to whom this
section applies, upon any matter or thing duly submitted to
him for examination or analysis and report in the course
of any proceeding under this Code, may be used as
evidence in any inquiry, trial or other proceeding under
this Code.
(2) The Court may, if it thinks fit, summon and
examine any such expert as to the subject- matter of his
report.
(3) Where any such expert is summoned by a Court
and he is unable to attend personally, he may, unless the
Court has expressly directed him to appear personally,
depute any responsible officer working with him to attend
the Court, if such officer is conversant with the facts of the
case and can satisfactorily depose in Court on his behalf.
(4) This section applies to the following Government
scientific experts, namely:-
(a) any Chemical Examiner or Assistant
Chemical Examiner to Government;
(b) the Chief Inspector of- Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director, Deputy Director or Assistant
Director] of a Central Forensic Science
Laboratory or a State Forensic Science
Laboratory;
(f) the Serologist to the Government.”
9. Section 293 of the Cr.P.C. leaves the question of
examination of the expert entirely to the discretion of the Court if the
report is based on observations which justify his conclusion the Court
may refuse to examine the expert even though it has been sought for by
either party. But the Court may summon the expert for examination if
4 of 10
::: Downloaded on – 04-06-2021 19:22:48 :::
CRM-M-2702-2021 -5-
any doubt arises in the mind of the Court out of the report. If the
accused wants to challenge the report he has to submit an application to
the trial Court pointing out in what respect the report was deficient and
necessitated the calling of the expert examination.
10. Section 311 of the Cr.P.C. empowers the Court to summon
and examine material witness or examine any person present and recall
and re-examine any person already examined. The same reads as
under:-
“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.”
11. In Godrej Pacific Tech. Ltd. Vs. Computer Joint India
Ltd. : 2008 (4) Criminal Court Cases 162 (Supreme Court) Hon’ble
Supreme Court observed as under :-
“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
5 of 10
::: Downloaded on – 04-06-2021 19:22:48 :::
CRM-M-2702-2021 -6-
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.”
12. In Mannan Sk. and others Vs. State of West Bengal and
another : 2014(4) R.C.R.(Criminal) 617 Hon’ble Supreme Court
observed 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 Code which 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 opinion that for the just
6 of 10
::: Downloaded on – 04-06-2021 19:22:48 :::
CRM-M-2702-2021 -7-
decision of the case recall or re-examination of the witness
is necessary. Since the power is wide it’s exercise has to be
done with circumspection. It is trite that wider the power
greater is the responsibility on the courts which exercise
it. The exercise of this power cannot be untrammeled and
arbitrary but must be only guided by the object of arriving
at a just decision of the case. It should not cause prejudice
to the accused. It should not permit the prosecution to fill-
up the lacuna. Whether recall of a witness is for filling-up
of a lacuna or it is for just decision of a case depends on
facts and circumstances of each case. In all cases it is
likely to be argued that the prosecution is trying to fill-up
a lacuna because the line of demarcation is thin. It is for
the court to consider all the circumstances and decide
whether the prayer for recall is genuine.
11. Rather than referring to all the judgments which
are cited before us, we would concentrate on Mohanlal
Soni which takes into consideration relevant judgments on
the scope of Section 311 and lays down the principles.
Mohanlal Soni is followed in all subsequent judgments. In
Mohanlal Soni this Court was considered the scope of
Section 540 of the Code of Criminal Procedure, 1898 ( the
old code) which is similar to Section 311 of the Code. This
Court observed that it is a cardinal rule in the law of
evidence that the best available evidence should be
brought before the court to prove a fact or the points in
issue. The relevant observations of this Court are as
under:
“………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 whereunder 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 re-
examine 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.”
This Court further observed as under :-
“……… 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
7 of 10
::: Downloaded on – 04-06-2021 19:22:48 :::
CRM-M-2702-2021 -8-
principle that 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.”
12. While dealing with Section 311 of the Code in
Rajendra Prasad this Court explained what is lacuna in
the prosecution as under :
“Lacuna in the prosecution must be
understood as the inherent weakness or a latent
wedge in the matrix of the prosecution case. The
advantage of it should normally go to the accused in
the trial of the case, but an oversight in the
management of the prosecution cannot be treated as
irreparable lacuna. No party in a trial can be
foreclosed from correcting errors. If proper
evidence was not adduced or a relevant material
was not brought on record due to any inadvertence,
the court should be magnanimous in permitting such
mistakes to be rectified. After all, function of the
criminal court is administration of criminal justice
and not to count errors committed by the parties or
to find out and declare who among the parties
performed better.”
13. Reference must also be made to the observations
of this Court in Zahira Habibulla H. Sheikh and anr. v.
State of Gujarat and ors., 2004(2) RCR (Criminal) 836 :
(2004) 4 SCC 158 where this Court described the scope of
Section 311 of the Code as under :
“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
8 of 10
::: Downloaded on – 04-06-2021 19:22:48 :::
CRM-M-2702-2021 -9-
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.””
13. In the present case the petitioner filed the application
seeking summoning of the Assistant Director, Ballistic, Forensic
Science Laboratory, Madhuban, District Karnal for cross-examination
on the grounds of claimed deficiencies requiring clarifications
regarding deformation/mutilation of bullet and absence of blood marks
on the bullet. The petitioner could not file the application for
summoning of the Assistant Director, Ballistic, Forensic Science
Laboratory, Madhuban, District Karnal at the time of tendering of the
report in prosecution evidence as the petitioner claims to have come to
know about the deficiencies in the report at later stage. The application
could not be dismissed on the ground of delay and the petitioner cannot
be barred from remedying the omission on the ground of filling up of
the lacuna. In view of the facts and circumstances of the case and also
duty of the Court to discover the truth, summoning of the Assistant
Director, Ballistic, Forensic Science Laboratory, Madhuban, District
Karnal for cross-examination is essential for explaining the claimed
deficiencies which will also be essential for just decision of the case.
The Court has to be magnanimous in permitting such omissions to be
remedied. No prejudice will be caused to the prosecution as the
prosecution will be entitled to re-examine the witness in case any new
facts and circumstances emerge during his cross-examination.
14. In view of the facts and circumstances of the case and the
above referred judicial precedents, the petition is allowed, the
9 of 10
::: Downloaded on – 04-06-2021 19:22:48 :::
CRM-M-2702-2021 -10-
impugned order dated 10.12.2020 passed by learned Additional
Sessions Judge, Mewat is set aside, the application under Section 311
of the Cr.P.C. is allowed and the Assistant Director, Ballistic, Forensic
Science Laboratory, Madhuban, District Karnal is ordered to be
summoned for cross-examination subject to payment of such amount as
may be assessed by learned Additional Sessions Judge, Mewat, as
expenses to him. However, the petitioner will be given only one
effective opportunity for cross-examination of the Assistant Director,
Ballistic, Forensic Science Laboratory, Madhuban, District Karnal.
15. A copy of this order be sent to learned District and
Sessions Judge, Mewat for forwarding the same to the Court concerned
for ensuring requisite compliance with the order.
05.04.2021 (ARUN KUMAR TYAGI)
Vinay JUDGE
Whether speaking/reasoned : Yes
Whether reportable : Yes
10 of 10
::: Downloaded on – 04-06-2021 19:22:48 :::
Comments