REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1181 OF 2008
(Arising out of S.L.P. (Crl.) No. 6396 of 2006)
Godrej Pacific Tech. Ltd. ...Appellant
Vs.
Computer Joint India Ltd. ...
Respondent
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
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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
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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
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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
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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
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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
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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
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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 (1967 (3) SCR 415).
11. The above position was highlighted in Zahira Habibullah
Sheikh & Anr. v. State of Gujarat & Ors. [(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.
..................................J.
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(Dr. ARIJIT PASAYAT)
..................................J.
(H.S. BEDI)
New Delhi,
July 30, 2008
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