RAVINDER Vs. STATE OF HARYANA

JUDGEMENT

(1.) PRESENT petition is filed challenging the order dated 12.2.2011 passed by Addl. Sessions Judge, Faridabad in Sessions trial No. 24/11.5.2009/19.1.2010 thereby rejecting the application moved by the accused/revisionist under Section 311 of the Code to recall PW-6 - Balraj Singh for further cross-examination.

(2.) THE facts of the present case inter alia are that present revisionist-accused is facing trial for an offence punishable under Sections 7 and 13(l)(d) of Prevention of Corruption Act. PW-6 Balraj Singh had appeared in the witness box on 1.2.2010 and again on 10.3.2010. He was cross-examined at length. After the closer of prosecution evidence statement of the accused under Section 313 Cr.P.C. was recorded on 31.7.2010. THEreafter, four defence witnesses were examined. THEreafter, an application was moved by the accused-revisionist to recall PW-6 - Balraj Singh for further cross-examination on the points relating to search and site plan. As per the accused-revisionist, PW-6 -Balraj Singh could not be cross-examined by the earlier counsel on the question of search and site plan, therefore, PW-6 - Balraj Singh should be recalled for further cross-examination. Learned trial Court vide impugned order has rejected the application, consequently, present revision petition was filed by the accused - petitioner.

(3.) APEX Court in the matter of Godrej Pacific Tech. Ltd. (supra) in paragraphs No. 7, 8 and 9 has 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 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. 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 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."