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Punjab-Haryana High Court
Manoj Kumar vs State Of Punjab on 31 March, 2021 IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
128
CRM-M-13260-2021
Date of decision: 31.03.2021
Manoj Kumar …..Petitioner
Versus
State of Punjab …..Respondent
CORAM: HON’BLE MR. JUSTICE ARUN KUMAR TYAGI
Present : Mr. Chandan Singh Rana, Advocate
for the petitioner.
Mr. Amit Mehta, Sr. D.A.G., Punjab
for the respondent-State.
****
ARUN KUMAR TYAGI, J. (ORAL)
The petitioner has filed present petition under Section 482
of the Code of Criminal Procedure, 1973 (for short, “the Cr.P.C.”) for
setting aside order dated 12.03.2021 passed by learned Additional
Sessions Judge (Fast Track Special Court), Ludhiana (D) vide which
application under Section 311 of the Cr.P.C. filed by the petitioner, for
recalling PW1-father and PW2-mother of the victim girl child, PW3-
Jaswinder Kaur, Principal, Government Middle School, Budhewal,
Ludhiana and PW4 (victim girl child) for their further cross-
examination was dismissed.
Briefly stated, the facts of the case are that father of the
victim girl child lodged FIR No.0103 dated 04.05.2019 under Section
365 of the Indian Penal Code 1860 (for short, “the IPC”) with the
Police Station Jamalpur, District Police Commissionerate Ludhiana
alleging that his eldest daughter had been kidnapped by some unknown
person and taken to some unknown place. Pursuant to registration of
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FIR, the police investigated the case and recovered the victim girl child
from custody of the petitioner. On completion of investigation, the
petitioner was charge-sheeted to face trial under Sections 365 and 376
of the IPC and Section 4 of the Protection of Children from Sexual
Offences Act, 2012. During trial statements of PW1-father and PW2-
mother of the victim girl child, PW3-Jaswinder Kaur, Principal,
Government Middle School, Budhewal, Ludhiana and PW4 (victim girl
child) were recorded. While the case was fixed for remaining
prosecution evidence, the petitioner filed application for recalling of
PW1-father and PW2-mother of the victim girl child, PW3-Jaswinder
Kaur, Principal, Government Middle School, Budhewal, Ludhiana and
PW4 (victim girl child) for further cross-examination on the ground of
change of Counsel and omission on the part of his previous Counsel to
put material questions to them. The application was dismissed by
learned Additional Sessions Judge (Fast Track Special Court),
Ludhiana (D) vide order dated 12.03.2021 on the grounds that no new
facts and circumstances were disclosed and change of Counsel was no
ground to allow the application.
Feeling aggrieved, the petitioner has filed the present
petition.
The petition has been opposed by the respondent-State.
However, no reply has been filed by the respondent-State.
I have heard arguments addressed by learned Counsel for
the petitioner and learned State Counsel and gone through the material
placed on record.
At the very outset, learned Counsel for the petitioner has
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submitted that the petitioner does not press the petition qua prayer for
recalling of PW1-father and PW2-mother of the victim girl child and
PW3-Jaswinder Kaur, Principal, Government Middle School,
Budhewal, Ludhiana for their further cross-examination and the petition
may be dismissed as withdrawn qua the same.
Accordingly, the petition is dismissed as withdrawn qua
prayer for recalling of PW1-father and PW2-mother of the victim girl
child and PW3-Jaswinder Kaur, Principal, Government Middle School,
Budhewal, Ludhiana for their further cross-examination.
So far as the prayer for recalling of PW4 (victim girl child)
for further cross-examination is concerned, learned Counsel for the
petitioner has submitted that there are material contradictions in
statement dated 06.05.2019 made under Section 161 of the Cr.P.C.,
statement dated 06.05.2019 made under Section 164 of the Cr.P.C. and
statement dated 20.12.2019 made during trial. At the time of her cross-
examination, previous Counsel for the petitioner omitted to put material
questions to the victim girl child regarding the same. Recalling of
victim girl child is necessary in the interest of justice for just decision
of the case. Therefore, the petition may be allowed, impugned order
dated 12.03.2021 may be set aside and the application under Section
311 of the Cr.P.C. may be allowed qua the prayer for recalling of PW-4
(the victim girl child).
On the other hand, learned State Counsel has submitted
that the petitioner was granted opportunity for cross-examination of the
victim girl child, who was cross-examined by his Counsel at length.
Mere change of Counsel was no ground for recalling the victim girl
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child for further cross-examination. The impugned order does not suffer
from any illegality. Therefore, the petition may be dismissed.
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 and 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.”
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
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
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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.”
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
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
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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
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
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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
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
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evidence in aid of a just decision and to uphold the
truth.””
In Mannan Sk. and others Vs. State of West Bengal and
another : 2014(4) R.C.R.(Criminal) 617 Hon’ble Supreme Court held
that justice could not be allowed to suffer because of the oversight of
the prosecution and allowed witness to be recalled for examination after
22 years.
In the present case the petitioner is seeking recalling of the
victim girl child for further cross-examination on the grounds that there
are material contradictions in statement dated 06.05.2019 made under
Section 161 of the Cr.P.C., statement dated 06.05.2019 made under
Section 164 of the Cr.P.C. and statement dated 20.12.2019 made during
trial by the victim girl child and some material questions in this regard
were not put to her by his previous Counsel which facts came to his
knowledge after the petitioner engaged his new Counsel. Detailed
references have been made to point out the contradictions/discrepancies
comprehensible on comparative reading of the said statements which
need not be reproduced here. Suffices it to observe that the petitioner
cannot be made to suffer for inadvertent omission on the part of his
previous Counsel to put material questions to the victim girl child with
regard to the same and recalling of the victim girl child for her re-
examination is 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 her further cross-examination.
In view of the facts and circumstances of the case and the
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above referred judicial precedents, the petition is partly allowed, the
impugned order dated 12.03.2021 passed by learned Additional
Sessions Judge (Fast Track Special Court), Ludhiana (D) is set aside,
the application under Section 311 of the Cr.P.C. is partly allowed and
victim girl child is ordered to be recalled for further cross-examination
subject to payment of Rs.10,000/- as expenses to the victim girl child.
However, the petitioner will be given only one effective opportunity for
cross-examination of the victim girl child.
A copy of this order be sent to learned District and
Sessions Judge, Ludhiana for forwarding the same to the Court
concerned for ensuring requisite compliance with the order.
31.03.2021 (ARUN KUMAR TYAGI)
Vinay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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