THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
CRIMINAL PETITION NO.8724 OF 2018
ORDER:-
The Criminal Petition, under Section 482 of the
Code of Criminal Procedure, 1973 (CrPC), is filed against
the Order dated 24.01.2017 in Crl.M.P. No.20 of 2017 in
C.C. No.73 of 2015 on the file of the I Additional Junior
Civil Judge, Guntur, whereby petition filed by 2nd
respondent/accused under Section 311 CrPC to
summon one Gangisetty Srinivasa Rao as a Court Witness to depose in the case and to produce RC book of the vehicle bearing Registration No.AP-07AQ 2392, was allowed.
2. A private complaint was filed by petitioner herein/complainant against 2nd respondent herein/ accused for the offences punishable under Sections 138 2 and 142 of the Negotiable Instruments Act, 1881 (for short, 'the NI Act, 1881'), and the same was taken on file as C.C. No.73 of 2015 by the learned Magistrate. The case is at the stage of further evidence on behalf of accused. At that stage, the accused filed a petition in Crl.M.P. No.20 of 2017 under Section 311 CrPC seeking to summon one GangisettySrinivasaRao to depose in the matter along with Original RC book of the vehicle bearing Registration No.AP07AQ 2392.
3. It is the case of 2nd respondent/accused that he purchased vehicle viz. Hero Honda Glamour bearing No.AP07AQ 2392 from the proposed witness for Rs.30,000/- on 29.11.2012 and at the time of purchase, he issued blank stamp paper for writing sale letter and also blank signed chequebearing No.754429 of Kind Vaishya Bank Limited, Arundelpet for mentioning the sale price, and the said fact is clearly mentioned in the 3 telephonic conversation, and the recorded CD is also filed into the Court below. As such, the voice of the witness also has to be compared with that of the voice in the C.D. to elicit the truth if he denies the voice in the C.D. Thus, there is every necessity to summon the witness for giving evidence on these aspects, and if the proposed witness is summoned as accused witness, the very purpose of summoning him would be defeated as the accused cannot cross-examine him if he deviates from the facts. Hence, unless he is summoned as a Court Witness, these things are not possible. It is his further case that the said chequewas misused by the petitioner/complainant who is co-brother of the proposed witness GangisettySrinivasaRao, and therefore, for arriving at a just decision of the case, it is necessary to examine the said GangisettySrinivasaRao directing him to produce original R.C. book which was not handed 4 over to 2nd respondent/accused though he purchased the vehicle from the proposed witness. It is his further case that to substantiate the same, he got issued a legal notice dated 23.06.2015 and the same was marked as Ex.D1, and though the petitioner/complainant and the proposed witness both received the said notice, they did not issue any reply, and he filed the notice and acknowledgement in the examination of the accused.
It is his case that as the proposed witness and the petitioner/complainant are related to each other, the petitioner/complainant obtained the cheque and stamp paper from the proposed witness and got filed the present case as against him, and in order to prove the same, examination of the proposed witness is utmost necessary. It is his further case that if the proposed witness is summoned as witness of the accused, the very 5 purpose of summoning will be defeated as he has to examine him and if he deviates from the facts.
4. The petitioner/complainant filed counter to the said petition stating that there are no valid or tenable grounds to summon the proposed witness to depose in the matter as Court Witness. He further stated that the accused has no right to direct the Court to examine a third party to the proceedings as a Court Witness. The provision of law under which the accused moved the application is not applicable to the relief sought in the petition.
5. Vide the impugned order, the learned Magistrate allowed the petition with an observation that the proposed witness can be examined as a Court Witness if the circumstances demand.
6. Learned counsel for the petitioner contended that the said petition has been filed only with a view to 6 drag on the proceedings from time to time. The accused filed copy of legal notice dated 23.06.2015 addressed to the proposed witness and the petitioner/complainant to withdraw two cases viz. O.S. No.289 of 2015 on the file of the I Additional District Judge, Guntur and C.C. No.197 of 2015 and the same was marked as Ex.D1 on 04.07.2016. Despite that, the accused had come up with a petition under Section 311 CrPC altogether with a new story to summon the proposed witness as a Court Witness as he has given the alleged cheque to the said proposed witness for Rs.30,000/- for the purpose of vehicle contrary to his very own legal notice dated 29.10.2014.
7. Section 311 of the Cr.P.C. contemplates thus:
"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 summed as a witness or 7 recall andreexamine any person already examined; and the Court shall summon and examine or recall and respondent-examine any such person if his evidence appears to it to be essential to the just decision of the case."
The aforesaid provision consists of two parts viz. (1) giving discretion to the court to examine the witness at any stage; and (2) the mandatory portion which compels a court to examine a witness if his evidence appears to be essential to the just decision of the case. The section enables and in certain circumstances, imposes on the court the duty of summoning witnesses who would have been otherwise brought before the court. The power of the court under Section 165 of the Indian Evidence Act, 1872 is complementary to its power under this section. These two sections between them confer jurisdiction on the court to act in aid of justice.
8. Learned counsel for the petitioner relied on the following decisions of the Hon'ble Supreme Court. 8
(a) In V.N.Patil v. K.Niranjan Kumar & others,1 wherein it is held thus: (paragraphs 23 and 24) "22. We find that the learned Judge of the High Court has not adverted to the factual matrix noticed by the learned trial Judge in its Order dated 3-9- 2016 and taking note of the submissions made by the contesting parties summarily, without assigning any reasons, albeit brief it may be, set aside the judgment of the learned trial Judge. We consider it appropriate to quote what has been observed by the High Court in its impugned judgment dated 11-1- 2017 [K. Niranjan Kumar v. State of Karnataka, 2017 SCC OnLine Kar 6477] which is as under: (K. Niranjan Kumar case [K. Niranjan Kumar v. State of Karnataka, 2017 SCC OnLine Kar 6477] , SCC OnLine Kar paras 11 and 12) "11. The learned Government Pleader would however seek to make a weak attempt to justify the apparent illegal procedure that has been permitted by the trial court in allowing the aforesaid application.
12. Therefore, the petition is summarily allowed. The order dated 3-9-2016 in SC No. 538 of 2004 on the file of LI Additional City Civil and Sessions Judge (CCH No. 52), Bengaluru, is quashed. The court below is directed to proceed further, in accordance with law."
1 Judgment dated 04.03.2021 in Criminal Appeal No.267 of 2021 9
23. It is not necessary that in every case, it is required to record elaborate reasons but since the matters are carried forward to this Court, the reasons, albeit brief may be, have to be recorded to facilitate this Court to understand as to what weighed with the learned Judge while passing the impugned judgment, moreover, when the finding of reversal has been recorded by the learned Judge in its impugned judgment."
(b) In Natasha Singh v. CBI (State),2 wherein it is held thus: (paragraphs 18 and 19) "Undoubtedly, an application filed under Section 311 CrPC must be allowed if fresh evidence is being produced to facilitate a just decision, however, in the instant case, the learned trial court prejudged the evidence of the witness sought to be examined by the appellant, and thereby caused grave and material prejudice to the appellant as regards her defence, which tantamounts to a flagrant violation of the principles of law governing the production of such evidence in keeping with the provisions of Section 311 CrPC. By doing so, the trial court reached the conclusion that the production of such evidence by the defence was not essential to facilitate a just decision of the case. Such an assumption is wholly misconceived, and is not tenable in law as the accused has every right to adduce evidence in rebuttal of the evidence brought on record by the prosecution. The court must examine whether such additional evidence is 2 Judgment dated 08.05.2013 in Criminal Appeal No.709 of 2013 10 necessary to facilitate a just and proper decision of the case. The examination of the handwriting expert may therefore be necessary to rebut the evidence of Rabi Lal Thapa (PW 40), and a request made for his examination ought not to have been rejected on the sole ground that the opinion of the handwriting expert would not be conclusive. In such a situation, the only issue that ought to have been considered by the courts below, is whether the evidence proposed to be adduced was relevant or not. Identical is the position regarding the panchnama witness, and the court is justified in weighing evidence, only and only once the same has been laid before it and brought on record. Mr B.B. Sharma, thus, may be in a position to depose with respect to whether the documents alleged to have been found, or alleged to have been seized, were actually recovered or not, and therefore, from the point of view of the appellant, his examination might prove to be essential and imperative for facilitating a just decision of the case.
The High Court has simply quoted relevant paragraphs from the judgment of the trial court and has approved the same without giving proper reasons, merely observing that the additional evidence sought to be brought on record was not essential for the purpose of arriving at a just decision. Furthermore, the same is not a case where if the application filed by the appellant had been allowed, the process would have taken much time. In fact, disallowing the said application, has caused delay. No prejudice would have been caused to the prosecution, if the defence had been permitted to examine the said three witnesses."
11
The learned counsel for petitioner also relied on a decision of the Orissa High Court in Nira alias Niranjan Jena and another v. State of Orissa,3 wherein it is held thus:
"It is well settled that Criminal Court has ample power to summon any person as witness or recall or re-examine any such person even if the evidence of both the sides is closed and the jurisdiction of the Court obviously dictated by exigency of situation and fair play and good sense appear to be only safe guide and the only requirement of justice commands the examination of any person which would depend on the facts and circumstances of each cases. In the instant case the evidence of P.W. 4 clearly suggests that the death of the deceased was homicidal due to pressing of her neck and the injury available on her are ante-mortem in nature. Her death was within seven years of her marriage. The plea of the accused that she died on natural death belied medical evidence. In the facts situation the aforesaid material witnesses are essential to unfold the truth of the case. Therefore, by invoking S. 311, Cr. P.C. these witnesses be summoned as Court witnesses. Bench clerk is directed to issue summon to the witnesses to be examined as Court witnesses.."
3 2008 Cri LJ 1315 12
9. Learned counsel for 2nd respondent relied on a decision of the Hon'ble Supreme Court in Varsha Garg v. State of Madhya Pradesh4, wherein it is held thus:
"The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised whenever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring tht the cause of discovering truth as an aid in the realization of justice is manifest."
"The relevance of the decoding register clearly emerges from the above statement of PW-41. Hence, the effort of the prosecution to produce the decoding register which is a crucial and vital piece of evidence ought not to have been obstructed. In terms of the provisions of Section 311, the summoning of the witness for the purpose of producing the decoding register was essential for the just decision of the case.
43. Having dealt with the satisfaction of the requirements of Section 311, we deal with the objection of the respondents that the application should not be allowed as it will lead to filling in the 4 Judgment dated 08.08.2022 in Criminal Appeal No.1021 of 2022 13 lacunae of the prosecution's case. However, even the said reason cannot be an absolute bar to allowing an application under Section 311.
44. In the decision in Zahira Habibullah Sheikh (5) v. State of Gujarat26, which was more recently reiterated in Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd.27, the Court specifically dealt with this objection and observed that the resultant filling of loopholes on account of allowing an application under Section 311 is merely a subsidiary factor and the Court's determination of the application should only be based on the test of the essentiality of the evidence. It noted that:
"28. 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.
51. The Court while reiterating the principle enunciated in Mohanlal Shamji Soni (supra) stressed 14 upon the wide ambit of Section 311 which allows the power to be exercised at any stage and held that:
"44. 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 or the defence has failed to produce some evidence which is necessary for a just and proper disposal of 15 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 evidence in aid of a just decision and to uphold the truth.
(emphasis supplied)
52. While reiterating the decisions of this Court in Karnel Singh v. State of M.P.28, Paras Yadav v. State of Bihar29, Ram Bihari Yadav v. State of Bihar30 and Amar Singh v. Balwinder Singh31 this Court held that the court may interfere even at the stage of appeal:
"64. It is no doubt true that the accused persons have been acquitted by the trial court and the acquittal has been upheld, but if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorised witnesses, it is no acquittal in the eye of the law and no sanctity or credibility can be attached and given to the so-called findings. It seems to be nothing but a travesty of truth, fraud on the legal process and the resultant decisions of courts -- coram non judis and non est. There is, therefore, every justification to call for interference in these appeals."
53. For the above reasons, we have come to the conclusion that the decision of the High Court which is impugned in the appeal is unsustainable. We accordingly allow the appeal and set aside the impugned judgment and order of the High Court 16 dated 8 April 2022 in Misc. Criminal Case No. 57152 of 2021 as well as the order of the Second Additional Session Judge, Dr. Ambedkar Nagar, District Indore dated 13 November 2021 in Sessions Trial 227 of 2016 dismissing the application filed by the prosecution. The application filed by the prosecution for the production of the decoding registers and for the summoning of the witnesses of the cellular companies for that purpose is allowed. The Second Additional Sessions Judge, Dr. Ambedkar Nagar, District Indore is directed to conclude Sessions Trial No. 227 of 2016 by 31 October 2022."
10. There cannot be any dispute that the power under Section 311 CrPC is a vast one. This power can be exercised at any stage of the trial. Such a power should be exercised provided the evidence which may be tendered by a witness is germane to the issue involved, or if proper evidence is not adduced or relevant material is not brought on record due to any inadvertence. It hardly needs to be emphasized that power under Section 311 CrPC should be exercised for the just decision of the case. The wide discretion conferred on the Court to 17 summon a witness must be exercised judicially, as wider the power, the greater is the necessity for application of the judicial mind. Whether to exercise the power or not, would depend upon the facts and circumstances of each case. The power to summon any person as a witness can be exercised if the Court comes to the conclusion that examination of the said witness is essential for just decision of the case.
11. In the case on hand, the record shows that it is the case of 2nd respondent/accused that he handed over empty stamp paper and cheque to the proposed witness, who happens to be co-brother of 2nd respondent/complainant, at the time of purchase of vehicle from him. Further, the proposed witness did not hand over the original R.C. took and those facts would be within the knowledge of the proposed witness who is supposed to depose about the transaction that took 18 place with 2nd respondent/accused with regard to purchase of vehicle, as alleged. It is germane to the facts of the case that the proposed witness happens to be close relative of petitioner/complainant and the truth will be elicited by way of cross-examination of the said witness by 2nd respondent/accused. Once the accused has taken the defence that he issued the subject cheque and empty stamp paper to the proposed witness, it is essential to examine him as a Court Witness to provide an opportunity to 2nd respondent/accused to cross- examine him if he deviates from the version and in order to come to a just decision of the case.
12. The objection of petitioner/complainant is only to the extent that the petition to examine the proposed witness as a Court Witness does not in any way come within the purview of Section 311 CrPC. 19
13. A conjoint reading of the provisions of Section 311 CrPC and 165 of the Indian Evidence Act, 1872 confers jurisdiction on the Court to act in aid of justice. In order to arrive at a just decision of the case, the learned Magistrate has rightly come to the conclusion that the evidence of the proposed witness is essential to arrive at a conclusion. When such is the position, at any time, during trial or other proceedings under the Code, the Court got ample discretion to summon the proposed witness to give evidence. Either party viz. complainant or the accused can invoke Section 311 CrPC for examining any witness who has not been listed or re-examine or recall any witness who is already examined. Even there is no bar for examining the proposed witness as a Court Witness, in order to arrive at a just decision of the case in the facts and circumstances of the case. It is pertinent to mention here that the proposed witness is 20 being co-brother of petitioner/complainant, he may not give evidence on behalf of 2nd respondent/accused. In such a case, the other option that is available for the accused is to cross-examine the proposed witness in order to elicit truth with regard to the alleged transaction.
14. It is pertinent to mention here that there might be some variance in the stand taken. Still, the right of accused in summoning the proposed witness as a Court Witness, cannot be taken away, as the material has not been brought on record due to his inadvertence. Wide discretion has been conferred on the Court to summon any witness and the same has to be exercised judiciously. The Court below rightly came to the conclusion that it is essential that the proposed witness has to be examined as a Court Witness to arrive at a just decision of the case. There is no infirmity in the order 21 passed by the Court below. There are no merits in the present Criminal Petition and the same is liable to be dismissed.
15. In the result, the Criminal Petition is dismissed.
Miscellaneous petitions, if any pending, in the Criminal Petition, shall stand closed.
_________________________________ JUSTICE K. SREENIVASA REDDY .09.2022 DRK 22 THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY CRIMINAL PETITION NO.8724 OF 2018 Date: .09.2022 DRK