GUNASEKARAN Vs. STATE

JUDGEMENT

(1.) THE learned counsel for the petitioner has submitted that the petitioner has filed a petition to recall P. Ws. 1 to 3, 7 and 8 for clarifying certain vital points in cross-examination before the trial court. THE learned Additional Public Prosecutor has raised stiff opposition.

(2.) THE learned Judicial Magistrate, after hearing both sides, has come to the conclusion that only in order to drag on the proceedings, the petition under Section 311 Cr. P. C. has been filed and that recalling of witnesses will not serve any purpose.

(3.) THE Honourable Supreme Court had an occasion to examine the scope and ambit of Section 311 Cr. P. C. of the Code in considerable details and illuminatingly formulated the legal principles which throw much light on the subject. THE operative portion of the said decision reported in 2004 SCC 158 at 189, ZAHIRA HABIBULLA H. SHEIKH AND ANOTHER Vs. STATE OF GUJARAT and OTHERS goes thus:- "the power of the Court under Section 165 of the evidence Act is in a way complementary to its power under Section 311 of the code. THE Section consists of two parts i. e. : (i) giving a discretion to the court to examine the witness at any stage, and (ii) the mandatory portion which compels the court to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the court is very wide, the very width requires a corresponding caution. In Mohanlal V. Union of India this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the words such as, "any court", "at any stage", or "any enquiry or trial or other proceedings", "any person" and "any such person" clearly spells out that the section has expressed in the widest-possible terms and do not limit the discretion of the court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the code. THE second part of the section does not allow any discretion but obligates and binds the court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case, "essential to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the section is to enable the court to arrive at the truth irrespective of the fact that the prosecution of 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 observe 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". Even though the Apex Court has directed to observe caution in exercising discretion under Section 311 of the Code, still it is opined that the Court should not get fettered in the exercise of unearthing or eliciting necessary materials in the evidence collecting process, besides holding that the section confers vast and wide powers on the presiding officers of courts for the said purpose.